Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate.
Appears in 6 contracts
Sources: Indenture (Adelphia Communications Corp), First Supplemental Indenture (Adelphia Communications Corp), Third Supplemental Indenture (Adelphia Communications Corp)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including, without limitation, any Restricted Subsidiary topurchase, engage in sale, lease or exchange of Property, the rendering of any transaction service or the payment of any management, advisory or similar fees, with any Affiliate upon terms which would be (other than Holdings, the Borrower or any less favorable than those obtainable by the Company other Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as a result of such transaction), unless such transaction is upon terms no less favorable to Holdings, the Borrower or such Restricted Subsidiary, as the case may be, than it would obtain in a comparable arm'sarm’s-length transaction with a Person which that is not an Affiliate. The Company shall not, and ; provided that the foregoing restriction shall not permit any Restricted Subsidiary apply to, engage in any transaction : (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (iia) any transaction or series of transactions otherwise permitted by this Section 6 between the Company Borrower and any one or more of its Restricted Subsidiaries of the Borrower or between two or more of its among Restricted Subsidiaries (provided that no more than 5% of the equity interest in any Borrower; (b) reasonable and customary fees and out-of-pocket costs paid to, and indemnities provided on behalf of, members of its Restricted Subsidiaries is owned by an Affiliatethe board of directors (or similar governing body), officers, employees and consultants (iiiincluding those with respect of New Media) of Holdings and its Subsidiaries; (c) compensation and severance arrangements for officers and other employees of Holdings and its Subsidiaries entered into in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements; (d) transactions described in Schedule 6.9; (e) the payment of compensation management, incentive or other fees and expenses set forth in the Management Agreement; (includingf) Restricted Payments permitted by Section 6.6, without limitationInvestments permitted by Section 6.7 and transactions permitted by Section 6.4, amounts paid pursuant to employee benefit plans(g) for payments made by Holdings, the personal services of officers, directors and employees of the Company Borrower or any of its the Restricted Subsidiaries, so long as the Board Subsidiaries pursuant to any tax sharing agreements with New Media or any other direct or indirect parent of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than Holdings to the Company extent attributable to the ownership or any operation of its Holdings, the Borrower and the Restricted SubsidiariesSubsidiaries and (h) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined digital media services provided to operating Subsidiaries controlled by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateSponsor.
Appears in 4 contracts
Sources: Credit Agreement (New Media Investment Group Inc.), Credit Agreement (New Media Investment Group Inc.), Credit Agreement (New Media Investment Group Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe sale, purchase, exchange or lease of Property or the rendering of any services) with, or for the personal services benefit of, any Affiliate of the Company (other than the Company or a Wholly Owned Restricted Subsidiary) (each, an “Affiliate Transaction”), unless:
(1) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction in arm’s-length dealings with an unrelated third party; and
(2) the Company delivers to the Trustee:
(I) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10,000,000 but no greater than $25,000,000, an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11; and
(II) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25,000,000, an Officers’ Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with this Section 4.11 and that such Affiliate Transaction or series of Affiliate Transactions has been approved by a majority of the Disinterested Directors of the Company.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary made in the ordinary course of its Restricted Subsidiariesbusiness in an aggregate amount not to exceed $1,000,000 outstanding at any one time;
(2) indemnities of officers, so long as the Board of Directors directors, employees and other agents of the Company in good faith shall have approved or any Restricted Subsidiary permitted by corporate charter or other organizational document, bylaw or statutory provisions;
(3) the terms thereof payment of reasonable and deemed the services theretofore or thereafter to be performed for such compensation or customary fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to directors of the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall Subsidiaries who are not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests employees of the Company or any Affiliate;
(4) the Company’s employee compensation and other benefit arrangements;
(5) transactions exclusively between or among the Company and any of the Restricted Subsidiaries or exclusively between or among such Restricted SubsidiarySubsidiaries, and provided such transactions are not otherwise prohibited by this Indenture; and
(b6) upon terms which would any Restricted Payment permitted to be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatepaid pursuant to Section 4.07.
Appears in 4 contracts
Sources: Indenture (Comstock Oil & Gas, LP), Indenture (Comstock Oil & Gas, LP), Indenture (Comstock Oil & Gas, LP)
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any business or enter into or suffer to exist any transaction with or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate upon of the Company (an "Affiliate Transaction"), unless:
(a) the terms which would be any of such Affiliate Transaction are:
(1) set forth in writing, and
(2) no less favorable than those obtainable by to the Company or a such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person which that is not an AffiliateAffiliate of the Company,
(b) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Board of Directors (including a majority of the disinterested members of the Board of Directors) approves such Affiliate Transaction and, in its good faith judgment, believes that such Affiliate Transaction complies with clause (a)(2) of this paragraph, as evidenced by a Board Resolution promptly delivered to the Trustee, and
(c) if such Affiliate Transaction involves aggregate payments or value in excess of $25.0 million, the Company obtains a written opinion from an Independent Financial Advisor to the effect that the consideration to be paid or received in connection with such Affiliate Transaction is fair, from a financial point of view, to the Company and the Restricted Subsidiaries, taken as a whole. The Notwithstanding the foregoing limitation, the Company shall not, and shall not permit or any Restricted Subsidiary to, engage in any transaction may enter into or suffer to exist the following:
(or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (iia) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided Subsidiaries, provided, however, that no more than 510% of the equity interest in total voting power of the Voting Stock (on a fully diluted basis) of any of its such Restricted Subsidiaries Subsidiary is owned by an AffiliateAffiliate of the Company (other than a Restricted Subsidiary), and ;
(iiib) any Restricted Payment permitted to be made pursuant to Section 4.04 or any Permitted Investment;
(c) the payment of compensation (including, without limitation, including amounts paid pursuant to employee benefit plans) and the provision of benefits for the personal services of officers, directors and employees of the Company or any of its the Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof thereof;
(d) loans and deemed advances to employees made in the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; ordinary course of business and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed consistent with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests past practices of the Company or such Restricted Subsidiary, as the case may be, provided, however, that such loans and advances do not exceed $3.0 million in the aggregate at any one time outstanding; and
(be) upon any transaction or series of transactions pursuant to any agreement in existence on the Issue Date, and any renewal, extension or replacement of such agreement on terms which would be obtainable by no less favorable to the Company or a and the Restricted Subsidiary Subsidiaries than the agreement in a comparable arm's-length transaction with a Person which is not an Affiliateexistence on the Issue Date.
Appears in 4 contracts
Sources: Indenture (Alamosa Delaware Inc), Indenture (Alamosa Holdings Inc), Indenture (Alamosa Delaware Inc)
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit permit, cause or suffer any Restricted Subsidiary to, engage in conduct any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company business or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in enter into any transaction (or series of related transactionstransactions which are similar or part of a common plan) involving in with or for the aggregate $1,000,000 or more with any Affiliate except for (i) the making benefit of any Restricted Payment, (ii) of their respective Affiliates or any transaction or series beneficial holder of transactions between the Company and one 10% or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees Common Stock of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors officer or director of the Company in good faith shall have approved (each, an "Affiliate Transaction"), unless the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the CompanyAffiliate Transaction are set forth in writing, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) and are fair and reasonable to be (a) in the best interests of the Company or such Restricted Subsidiary, as the case may be. Each Affiliate Transaction involving aggregate payments or other Fair Market Value in excess of $5 million shall be approved by a majority of the Board, such approval to be evidenced by a Board Resolution stating that the Board has determined that such transaction or transactions comply with the foregoing provisions. In addition to the foregoing, each Affiliate Transaction involving aggregate consideration of $10 million or more shall be approved by a majority of the Disinterested Directors; provided that, in lieu of such approval by the Disinterested Directors, the Company may obtain a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction to the Company or the Restricted Subsidiary, as the case may be, are fair from a financial point of view. In addition, a Restricted Affiliate shall not enter into any transaction (or series of related transactions which are similar or part of a common plan) with or for the benefit of the Other Partner, unless the terms of such transaction or transactions are in writing, and are fair and reasonable to such Restricted Affiliate. For purposes of this covenant, any Affiliate Transaction approved by a majority of the Disinterested Directors or as to which a written opinion has been obtained from an Independent Financial Advisor, on the basis set forth in the preceding sentence, shall be deemed to be on terms that are fair and reasonable to the Company and the Restricted Subsidiaries, as the case may be, and therefore shall be permitted under this covenant. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (bi) upon terms which would be obtainable transactions with or among, or solely for the benefit of, the Company and/or any of the Restricted Subsidiaries, (ii) transactions pursuant to agreements and arrangements existing on the Issue Date, (iii) transactions among any of the Company or the Restricted Subsidiaries, on the one hand, and any of the Restricted Affiliates, on the other hand, provided that such transactions are in the ordinary course of business and are related to or in furtherance of a Permitted Business, (iv) dividends paid by the Company pursuant to and in compliance with this Section 10.13, (v) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries bonuses, employment agreements and arrangements, compensation or a Restricted Subsidiary in a comparable arm's-length transaction employee benefit arrangements or legal fees and (vi) grants of customary registration rights with a Person which is not an Affiliaterespect to securities of the Company.
Appears in 4 contracts
Sources: Indenture (RCN Corp /De/), Indenture (RCN Corp /De/), Indenture (RCN Corp /De/)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any transaction other transactions respect thereto with, any of its Affiliates, except:
(i) (A) transactions with the Company or any Affiliate upon Restricted Subsidiary and (B) transactions involving aggregate payments or consideration of less than the greater of $30,000,000 and 3.0% of Consolidated EBITDA for the most recently ended Test Period prior to such transaction;
(ii) on terms which substantially as favorable to the Company or such Restricted Subsidiary as would be any less favorable than those obtainable by the Company or a Restricted such Subsidiary at the time in a comparable arm'sarm’s-length transaction with a Person which is not other than an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and ;
(iii) the payment of compensation fees and expenses related to the Transactions;
(including, without limitation, amounts paid iv) issuances of Equity Interests of the Company to the extent not otherwise prohibited by this Indenture;
(v) employment and severance arrangements (including salary or guaranteed payments and bonuses) between the Company and the Restricted Subsidiaries and their respective officers and employees in the ordinary course of business or otherwise in connection with the Transactions;
(vi) payments by the Company and the Restricted Subsidiaries pursuant to employee benefit planstax sharing agreements among the Company and the Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company and the Restricted Subsidiaries, to the extent payments are permitted by Section 4.06;
(vii) for the personal services payment of officerscustomary fees and reasonable out-of-pocket costs to, directors and indemnities provided on behalf of, directors, officers and employees of a Parent Entity (or any direct or indirect parent company thereof), the Company and the Restricted Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of the Company and the Restricted Subsidiaries;
(viii) transactions pursuant to any agreement or arrangement in effect as of the Issue Date, or any of its Restricted Subsidiariesamendment, modification, supplement or replacement thereto (so long as any such amendment, modification, supplement or replacement is not disadvantageous in any material respect to Holders when taken as a whole as compared to the applicable agreement or arrangement as in effect on the Issue Date as determined by the Company in good faith);
(ix) Restricted Payments permitted under Section 4.06 (or Investments made pursuant to clause (m) of the definition of “Permitted Investments”);
(x) customary payments by the Company and any of the Restricted Subsidiaries made for any financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions, divestitures or financings) and any subsequent transaction or exit fee, which payments are approved by the majority of the members of the Board of Directors or a majority of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent disinterested members of the Board of Directors of such Person in good faith;
(xi) the issuance or transfer of Equity Interests (other than Disqualified Equity Interests) of the Company to any Permitted Holder or to any former, current or future director, manager, officer, employee or consultant (or any Affiliate of any of the foregoing) of the Company, any of the Subsidiaries or any direct or indirect parent thereof;
(xii) dispositions of Equity Interests in their reasonablean Unrestricted Subsidiary to the extent otherwise permitted hereunder;
(xiii) Affiliate repurchases of the loans and/or commitments under the Senior Credit Facilities to the extent permitted under agreements governing the Senior Credit Facilities, good faith judgment of the Notes, and the holding of such loans, the Notes and the payments and other related transactions in respect thereof;
(as evidenced xiv) transactions in connection with any Permitted Receivables Financing;
(xv) loans, Investments and other transactions by a Board Resolution filed with the TrusteeCompany and its Restricted Subsidiaries to the extent permitted under this Indenture;
(xvi) to be loans, advances and other transactions between or among the Company, any Restricted Subsidiary and/or any joint venture (aregardless of the form of legal entity) in the best interests of which the Company or any Subsidiary has invested (and which Subsidiary or joint venture would not be an Affiliate of a Parent Entity but for such Restricted Parent Entity’s or a Subsidiary, ’s ownership of Equity Interests in such joint venture or Subsidiary) to the extent not otherwise prohibited hereunder; and
(xvii) the existence and (b) upon terms which would be obtainable by performance of agreements and transactions with any Unrestricted Subsidiary that were entered into prior to the Company or designation of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that the transaction was permitted at the time that it was entered into with such Restricted Subsidiary and transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary; provided that such transaction was not entered into in a comparable arm's-length transaction with a Person which is not an Affiliatecontemplation of such designation or redesignation, as applicable.
Appears in 4 contracts
Sources: Indenture (Amc Entertainment Holdings, Inc.), Indenture (Amc Entertainment Holdings, Inc.), Indenture (Amc Entertainment Holdings, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of the Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between with any Affiliate (an “Affiliate Transaction”) or extend, renew, waive or otherwise modify the Company terms of any Affiliate Transaction entered into prior to the Issue Date unless the terms of such Affiliate Transaction are fair and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant reasonable to employee benefit plans) for the personal services of officers, directors and employees of the Company or such Restricted Subsidiary, as the case may be, or the terms of such Affiliate Transaction are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm’s-length basis between unaffiliated parties. In any Affiliate Transaction involving an amount or having a value in excess of its Restricted Subsidiaries$20.0 million, so long as the Company must obtain a Board Resolution approved by a majority of the members of the Board of Directors of the Company in good faith shall have approved (and a majority of the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent disinterested members of the Board of Directors of the Company, ) certifying that such Affiliate Transaction complies with this Section 4.14.
(b) The foregoing provisions will not apply to:
(i) any Restricted Payment that is not prohibited by Section 4.11 (other than those described in their reasonable, good faith judgment clause (as evidenced by a Board Resolution filed with v) of the Trusteesecond paragraph thereunder);
(ii) any transaction between the Company and any of its Restricted Subsidiaries or between Restricted Subsidiaries;
(iii) the payment of reasonable and customary regular fees to be (a) in the best interests directors of the Company who are not employees of the Company and any employment and consulting arrangements entered into by the Company or such any Restricted Subsidiary, and Subsidiary with their executives or consultants in the ordinary course of business;
(biv) upon terms any transaction with a joint venture or similar entity which would be obtainable by constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Company or any of its Subsidiaries other than the Company or a comparable arm's-length Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity;
(v) for so long as the Company is a member of a group filing a consolidated or combined tax return with Parent, payments to Parent in respect of (A) an allocable portion of the tax liabilities of such group that is attributable to the Company and its Subsidiaries, taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Company and such Subsidiaries from other taxable years and (B) any cancellation of debt income in connection with any refinancing of Indebtedness of Parent (collectively, “Tax Payments”); provided that any Tax Payments received from the Company shall be paid over to the appropriate taxing authority within 30 days of Parent’s receipt of such Tax Payments or refunded to the Company;
(vi) any employment, indemnification, severance or other agreement or transactions relating to employee benefits or benefit plans with any employee, consultant or director of the Company or a Restricted Subsidiary that is entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business; or
(vii) any transaction with of the Company and its Restricted Subsidiaries which would constitue a Person which is not an AffiliatePermitted Securitization Financing.
Appears in 4 contracts
Sources: Indenture (Lamar Media Corp/De), Indenture (Lamar Advertising Co/New), Indenture (Lamar Media Corp/De)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in conduct any business or enter into any transaction with or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate upon of the Company (an “Affiliate Transaction”), unless:
(1) the terms which would be any of such Affiliate Transaction are, when viewed together with related Affiliate Transactions, if any, no less favorable than those obtainable by to the Company or a such Restricted Subsidiary Subsidiary, as the case may be, than those that reasonably could be expected to be obtained in a comparable arm'sarm’s-length transaction with a Person which that is not an Affiliate. The Company shall not, and shall not permit Affiliate of the Company; and
(2) with respect to any Restricted Subsidiary to, engage in any transaction (Affiliate Transaction or series of related transactionsAffiliate Transactions involving aggregate consideration in excess of $50 million, the Company delivers to the Trustee either a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 1014 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors, or an opinion as to the fairness to the Company of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) involving in Notwithstanding the aggregate $1,000,000 or more with any foregoing limitation, the following shall not be Affiliate except for Transactions:
(i) the making of any Restricted Payment, (ii1) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (Subsidiaries, provided that no more than 510% of the equity interest in total voting power of the Voting Stock (on a fully diluted basis) of any of its such Restricted Subsidiaries Subsidiary is owned by an AffiliateAffiliate of the Company (other than a Restricted Subsidiary), and ;
(iii2) any Restricted Payment permitted to be made pursuant to Section 1009 or any Permitted Investment;
(3) the payment of compensation (including, without limitation, including amounts paid pursuant to employee benefit plans) ), performance or contribution obligations for the personal services of, the issuance, grant or award of stock options or other equity related interests to, or the granting of indemnification to, officers, directors and employees of the Company or any of its the Restricted Subsidiaries, so long as in the Board ordinary course of Directors business;
(4) loans and advances to directors, employees or officers made in the ordinary course of the Company business in good faith shall have approved the terms thereof compliance with applicable laws and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed consistent with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests past practices of the Company or such Restricted Subsidiary, as the case may be, provided that such loans and advances do not exceed $5.0 million in the aggregate at any one time outstanding;
(b5) upon terms the entering into, maintaining or performance of any employment contract, collective bargaining agreement, benefit plan, program or arrangement, related trust agreement or other similar arrangement (in each case entered into in the ordinary course of business and consistent with past practice) for or with any employee, officer or director, including vacation, health, insurance, deferred compensation, retirement, savings or other similar plans;
(6) transactions to which would be obtainable no other Affiliate of the Company or any Restricted Subsidiary is a party with Permitted Joint Ventures; and
(7) the payment of reasonable and customary regular fees to directors of the Company who are not employees of the Company and indemnification arrangements entered into by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatethe ordinary course of business.
Appears in 4 contracts
Sources: Indenture (Sanmina-Sci Corp), Indenture (Sanmina-Sci Corp), Indenture (Sanmina-Sci Corp)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including any Restricted Subsidiary topurchase, engage in sale, lease or exchange of Property, the rendering of any transaction service or the payment of any management, advisory or similar fees, with any Affiliate (other than transactions between or among the Parent Borrower and the Subsidiary Guarantors) unless such transaction is (a) not otherwise prohibited under this Agreement and (b) upon fair and reasonable terms which would be any no less favorable to the Parent Borrower or such Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-arm’s length transaction with a Person which is not an Affiliate. The Company shall not, and except that this Section 7.10 shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for prohibit (i) the making sale, transfer, encumbrance or other disposition by the Parent Borrower or its Subsidiaries to a Subsidiary of any Restricted Paymentaccounts receivable or related ancillary rights or assets, or interests therein, pursuant to a Receivables Transfer Program, (ii) any transaction or series overhead and other ordinary course allocations of transactions between the Company costs and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate)services on a reasonable basis, and (iii) allocations of tax liabilities and other tax-related items among the payment Parent Borrower and its Affiliates based principally upon the financial income, taxable income, credits and other amounts directly related to the respective parties, (iv) any incurrence of compensation Indebtedness not prohibited by Section 7.2, (includingiii) any Restricted Payment not prohibited by Section 7.6, without limitation, amounts paid (iv) any Investment permitted by Section 7.8 specifically contemplated by Section 7.8 to be made among Affiliates or (v) transactions between or among the Parent Borrower and its Subsidiaries in the ordinary course of business which are pursuant to employee benefit plans) customary transfer pricing arrangements or for the personal services achievement of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter operating efficiencies (but not involving (x) an Investment not specifically contemplated by Section 7.8 to be performed for such compensation made among Affiliates or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiariesy) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, not otherwise permitted under this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateAgreement).
Appears in 3 contracts
Sources: Credit Agreement (Conmed Corp), Credit Agreement (Conmed Corp), Credit Agreement (Conmed Corp)
Limitation on Transactions with Affiliates. The Company shall notNeither Borrower nor any of its Subsidiaries shall, and shall not permit directly or indirectly, enter into any Restricted Subsidiary to, engage transaction or series of related transactions or participate in any transaction with arrangement (including any purchase, sale, lease or exchange of assets or the rendering of any service) with, or for the benefit of, any Affiliate other than in the ordinary course of business of Borrower upon fair and reasonable terms which would be any no less favorable to Borrower than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-length transaction with a Person which is not an non-Affiliate. The Company shall not, ; provided that Borrower and shall not permit any Restricted Subsidiary to, its Subsidiaries may engage in any transaction the following transactions:
(or series of related transactionsa) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Paymentreasonable and customary director, (ii) any transaction or series of transactions between the Company officer and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of employee compensation (includingincluding bonuses) and other benefits (including retirement, without limitationhealth, amounts paid pursuant to employee stock option and other benefit plans) for the personal services of officersand indemnification arrangements, directors and employees of the Company or any of its Restricted Subsidiaries, so long as in each case approved in good faith by the Board of Directors of Borrower (or any duly authorized committee thereof);
(i) travel advances and employee relocation loans and other employee loans and advances in the Company ordinary course of business in good faith shall have approved the terms thereof an amount not to exceed [*****] at any one time outstanding, and deemed the services theretofore (ii) non-cash loans to employees, officers or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than directors relating to the Company purchase of Capital Stock of Borrower or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale Subsidiaries pursuant to employee stock purchase plans or transfer of interest in a Restricted Investment is for fair value as determined similar agreements approved by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Borrower's Board of Directors of the Company(or any duly authorized committee thereof), which loans shall, in their reasonableeach case, good faith judgment (as be evidenced by a Board Resolution filed promissory notes pledged to Lender in accordance with the TrusteeSecurity Agreement;
(c) to be transactions with customers, clients, suppliers, lessors under operating leases, facility landlords, joint venture partners or purchasers or sellers of goods and services, in each case in the ordinary course of business and otherwise not prohibited by the Loan Documents;
(ad) transactions (i) among Borrower and its Wholly Owned Subsidiaries which are Guarantors and (ii) among Foreign Subsidiaries;
(e) transactions among Borrower and Subsidiaries which are not Guarantors (i) in the best interests ordinary course of business and (ii) reasonably necessary in connection with licenses of Intellectual Property and related rights with respect to the Exploitation of Included Products outside of the Company or such Restricted Subsidiary, United States; and
(f) transactions among the Borrower Parties and (btheir Foreign Subsidiaries specifically permitted by Sections 9.05(g) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateand 9.02.
Appears in 3 contracts
Sources: Loan Agreement (Raptor Pharmaceutical Corp), Loan Agreement (Raptor Pharmaceutical Corp), Loan Agreement (Raptor Pharmaceutical Corp)
Limitation on Transactions with Affiliates. The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, conduct any business or enter into or permit to exist any transaction or series of related transactions (including, but not limited to, the purchase, sale or exchange of Property, the making of any Investment, the giving of any Guarantee or the rendering of any service) with any Unrestricted Subsidiary or any Affiliate upon terms which would be any less favorable than those obtainable by of the Company or a any Restricted Subsidiary other than transactions solely among any of the Company and its Restricted Subsidiaries (an "Affiliate Transaction") unless: (i) such business, transaction or series of related transactions is on terms no less favorable to the Company or such Restricted Subsidiary than those that could be obtained in a comparable arm's-length transaction between unaffiliated parties; and (ii) with respect to an Affiliate Transaction involving an amount or having a Person which is not value in excess of $500,000, the Company delivers to the Trustee an Affiliate. The Company shall notOfficers' Certificate stating that such business, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more transactions complies with any Affiliate except for clause (i) above. In the making case of any Restricted Paymentan Affiliate Transaction involving an amount or having a value in excess of $3,000,000 but less than or equal to $10,000,000, (ii) any transaction or series of transactions between the Company and one or more must obtain a Board Resolution of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors (including a majority of Disinterested Directors, if any) certifying that such Affiliate Transaction complies with clause (i) above. In the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) case of an interest in a Restricted Investment, Affiliate Transaction involving an amount greater than or having a value in excess of $25,000,00010,000,000, such Asset Sale or transfer of interest in the Company must obtain a Restricted Investment is for fair value as determined by an written opinion of a nationally recognized investment banking firm filed with or other expert stating that the Trusteetransaction is fair to the Company or such Restricted Subsidiary from a financial point of view. Notwithstanding the foregoingThe foregoing limitation does not limit, this provision and shall not prohibit apply to, (1) any such transaction which is determined by or series of related transactions pursuant to the independent terms of the Permitted Affiliate Agreements, (2) Restricted Payments and Permitted Investments permitted under this Indenture and payments made solely in Qualified Capital Interests of the Company that would be Restricted Payments if they were not excluded from the definition of Restricted Payments pursuant to clause (a) of the definition of Restricted Payments, (3) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of the CompanyCompany or a Restricted Subsidiary who are outside directors, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with 4) the Trustee) payment of reasonable and customary compensation and indemnities to be (a) in the best interests officers and employees of the Company or such any Restricted SubsidiarySubsidiary as determined by the Board of Directors thereof in good faith, and (b5) upon terms which would any transaction pursuant to a written agreement, arrangement or understanding with any Joint Venture Company; provided, however, that any Capital Interest or Debt of such Joint Venture Company that is beneficially owned by an Affiliate of the Company shall only be obtainable beneficially owned by the Company or a Wholly-Owned Restricted Subsidiary of the Company. In addition, for purposes of this Section 4.10, any transaction or series of related transactions between the Company or any Restricted Subsidiary and an Affiliate of the Company that is approved by a majority of the Disinterested Directors, if any, shall be deemed to comply with clause (i) above. Notwithstanding the provisions of this Section 4.10, the Company and its Restricted Subsidiaries are permitted to consummate the Transactions and to pay fees in a comparable arm's-length transaction connection with a Person which is not an Affiliatethe consummation of the Transactions.
Appears in 3 contracts
Sources: Indenture (Petro Stopping Centers L P), Indenture (Petro Financial Corp), Indenture (Petro Stopping Centers Holdings Lp)
Limitation on Transactions with Affiliates. The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any business or enter into or suffer to exist any transaction with or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate upon of the Issuer (an “Affiliate Transaction”) involving payments in excess of $5.0 million, unless:
(a) the terms which would be any of such Affiliate Transaction are no less favorable to the Issuer or that Restricted Subsidiary, as the case may be, taken as a whole, than those obtainable by the Company or a Restricted Subsidiary that could be obtained in a comparable arm'sarm’s-length transaction with a Person which that is not an AffiliateAffiliate of the Issuer, and
(b) if the Affiliate Transaction involves aggregate payments or value in excess of $25.0 million, the Board of Directors (including a majority of the disinterested members of the Board of Directors) approves the Affiliate Transaction and, in its good faith judgment, believes that the Affiliate Transaction complies with clause (a) of this paragraph as evidenced by a resolution of the Board of Directors promptly delivered to the Trustee. The Company shall notNotwithstanding the foregoing limitation, and shall not permit the Issuer or any Restricted Subsidiary to, engage in any transaction may enter into or suffer to exist the following:
(or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (iia) any transaction or series of transactions between the Company Issuer and one or more of its Restricted Subsidiaries or between two or more Restricted Subsidiaries;
(b) any Restricted Payment permitted to be made pursuant to Section 4.05 or any Permitted Investment;
(c) any reasonable or customary employment, consulting, service, severance, termination agreement, employee benefit plan, compensation arrangement, indemnification arrangement, or any similar arrangement entered into by the Issuer or a Restricted Subsidiary with a current or former director, officer or employee of the Issuer or a Restricted Subsidiary and payments related thereto; or any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Issuer, restricted stock plans, restricted stock unit plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of directors, officers and employees of the Issuer or a Restricted Subsidiary approved by the Board of Directors of the Issuer;
(i) reimbursement of employee travel and lodging costs and other business expenses incurred in the ordinary course of business and (ii) loans and advances to employees made in the ordinary course of business in compliance with applicable laws and consistent with the past practices of the Issuer or that Restricted Subsidiary, as the case may be;
(e) any issuance of shares of Capital Stock (other than Disqualified Stock) of the Issuer;
(f) any agreement as in effect on the Issue Date or any amendment, modification, supplement, extension or renewal thereto (so long as such amendment, modification, supplement, extension or renewal is not materially adverse to the interests of the Holders of the Notes) or any transaction contemplated thereby;
(g) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged or consolidated with or into the Issuer or a Restricted Subsidiary, as such agreement may be amended, modified, supplemented, extended or renewed from time to time; provided that such agreement was not entered into in contemplation of such acquisition, merger or consolidation, and so long as any such amendment, modification, supplement, extension or renewal, when taken as a whole, is not materially more disadvantageous to the Holders, in the reasonable determination of two Officers of the Issuer (as evidenced by an Officers’ Certificate), than the applicable agreement as in effect on the date of such acquisition, merger or consolidation;
(h) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Issuer and its Restricted Subsidiaries (and otherwise in compliance with the terms of this Indenture; provided that no more than 5% in the reasonable determination of two Officers of the equity interest in any of its Restricted Subsidiaries is owned Issuer (as evidenced by an AffiliateOfficers’ Certificate), such transactions are on terms that are not materially less favorable, when taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person;
(i) transactions in which the Issuer or any Restricted Subsidiary delivers to the Trustee a letter or opinion from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, than those that might reasonably have been obtained by the Issuer or such Restricted Subsidiary in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate;
(j) the Transactions and (iii) the payment of compensation all fees and expenses related to the Transactions;
(k) any service, purchase, lease, supply or similar agreement entered into in the ordinary course of business (including, without limitation, amounts paid pursuant to employee benefit plansany joint venture agreement) for between the personal services of officers, directors and employees of the Company Issuer or any Restricted Subsidiary and any Affiliate (other than an Unrestricted Subsidiary) that is a customer, client, supplier, purchaser or seller of its Restricted Subsidiariesgoods or services, so long as the Board of Directors of the Company Issuer determines in good faith shall have approved the that any such agreement is on terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than not materially less favorable to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company Issuer or such Restricted Subsidiary, and (b) upon terms which would Subsidiary than those that could be obtainable by the Company or a Restricted Subsidiary obtained in a comparable arm's-length arms’-length transaction with a Person which an entity that is not an Affiliate;
(l) pledges of equity interests of Unrestricted Subsidiaries to secure Debt of such Unrestricted Subsidiaries; and
(m) transactions entered into as part of a Permitted Receivables Financing on customary terms (as determined by the Issuer’s Board of Directors).
Appears in 3 contracts
Sources: Indenture (Crocs, Inc.), Indenture (Crocs, Inc.), Indenture (Energizer Holdings, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe sale, purchase, exchange or lease of assets, property or services) for the personal services of officers, directors and employees with any Affiliate of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition Subsidiary unless (other than to the Company or any of its Restricted Subsidiariesi) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which or series of related transactions is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) on terms that are not materially less favorable to be (a) in the best interests of the Company or such Restricted Subsidiary, as the case may be, than would reasonably be expected to be available in a comparable transaction in arm’s-length dealings with an unrelated third party, and (ii) with respect to any transaction or series of related transactions involving aggregate payments in excess of $50.0 million, the Company delivers an Officers’ Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (i) above and such transaction or series of related transactions has been approved by a majority of the members of the Board of Directors (and approved by a majority of the Independent Directors or, in the event there is only one Independent Director, by such Independent Director).
(b) upon Notwithstanding the foregoing, this provision will not apply to (i) employment agreements or compensation or employee benefit arrangements or indemnification agreements or similar arrangements with any officer, director or employee of the Company (including benefits thereunder), (ii) any transaction entered into by or among the Company or any Restricted Subsidiary and one or more Restricted Subsidiaries, (iii) transactions pursuant to agreements existing on the Issue Date and any amendment to or extensions or replacements thereof on terms not materially less favorable to the Company, (iv) Restricted Payments and Permitted Investments, (v) issuances of equity of the Company, (vi) transactions in which would be obtainable the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an independent financial advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of the preceding paragraph, (vii) payments by the Company (and any Parent Entity) and its Restricted Subsidiaries pursuant to any tax sharing agreements among the Company (and any such Parent Entity) and its Restricted Subsidiaries to the extent constituting Permitted Tax Distributions, (viii) any customary transaction with a Securitization Subsidiary effected as part of a Qualified Securitization Financing or Receivables Facility and any disposition of Securitization Assets or related assets in connection with any Qualified Securitization Financing and any repurchase of Securitization Assets pursuant to a Securitization Repurchase Obligation, (ix) transactions entered into by a Restricted Subsidiary with an Affiliate prior to the day such Restricted Subsidiary is designated as a Restricted Subsidiary (so long as such transaction was not entered into in a comparable arm's-length contemplation of such redesignation) and (x) any transaction with a Person which is not an Affiliateor series of related transactions involving aggregate payments of $25.0 million or less.
Appears in 3 contracts
Sources: Indenture (Gray Media, Inc), Indenture (Gray Media, Inc), Indenture (Gray Television Inc)
Limitation on Transactions with Affiliates. The Company Parent shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any business or enter into, renew, extend or permit to exist any transaction or series of related transactions (including any purchase, sale, lease or other exchange of property or the rendering of any service) with any Affiliate upon that is not either (a) Parent or one of Parent’s Restricted Subsidiaries or (b) Weatherford\Al-Rushaid Limited or Weatherford Saudi Arabia Limited, other than on fair and reasonable terms which (taking all related transactions into account and considering the terms of such related transactions in their entirety) substantially as favorable to Parent or such Restricted Subsidiary, as the case may be, as would be any less favorable than those obtainable by the Company or a Restricted Subsidiary available in a comparable arm'sarm’s-length transaction with a Person which that is not an Affiliate. The Company shall notNotwithstanding the foregoing, and the restrictions set forth in this covenant shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for apply to (i) the making of any Restricted Payment, Investments in Unrestricted Subsidiaries permitted by Section 8.06; (ii) any transaction the payment of reasonable and customary regular fees to directors of an Obligor or series a Restricted Subsidiary of transactions between such Obligor who are not employees of such Obligor; (iii) loans and advances permitted hereby to officers and employees of an Obligor and its respective Restricted Subsidiaries for travel, entertainment and moving and other relocation expenses made in direct furtherance and in the Company ordinary course of business of an Obligor and one or more of its Restricted Subsidiaries Subsidiaries; (iv) any other transaction with any employee, officer or between two director of an Obligor or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for benefit, compensation or indemnification arrangements entered into in the personal services ordinary course of officersbusiness and approved by, directors and employees of the Company or any of its Restricted Subsidiariesas applicable, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore such Obligor or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, Subsidiary permitted by this Agreement; and (bv) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm'snon-length transaction with a Person which is not an Affiliateexclusive licenses of Intellectual Property.
Appears in 3 contracts
Sources: Lc Credit Agreement (Weatherford International PLC), Lc Credit Agreement and u.s. Security Agreement (Weatherford International PLC), Lc Credit Agreement (Weatherford International PLC)
Limitation on Transactions with Affiliates. The Company shall not, not and shall not permit any Restricted Subsidiary to, engage in sell, lease, transfer or otherwise dispose of any transaction with of its properties or assets to, or purchase any property or assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate upon (including any Unrestricted Subsidiary) (each of the foregoing, an "Affiliate Transaction"), unless:
(a) such Affiliate Transaction is on terms which would be any that are no less favorable to the Company or its Restricted Subsidiaries than those obtainable that would have been obtained in a comparable transaction by the Company or such Subsidiaries with an unrelated Person; and
(b) if such Affiliate Transaction involves aggregate payments in excess of $15 million such Affiliate Transaction has been approved by a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% majority of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent disinterested members of the Board of Directors of the Company, and the Company delivers to the Trustee no later than five business days following January 1 or July 1 of each year or ten days following a request from the Trustee a resolution of the Board of Directors of the Company set forth in their reasonable, good faith judgment (as evidenced by a Board Resolution filed an Officers' Certificate certifying that such Affiliate Transaction has been so approved and complies with the Trustee) to be clause (a) above; PROVIDED, HOWEVER, that (i) the payment of compensation to directors and management of EchoStar and its Subsidiaries; (ii) transactions between or among the Company and its Wholly Owned Subsidiaries (other than Unrestricted Subsidiaries of the Company); (iii) any dividend, distribution, sale, conveyance or other disposition of any assets of, or Equity Interests in, any Non-Core Assets or ETC or the proceeds of a sale, conveyance or other disposition thereof, in accordance with the best interests provisions of this Indenture; (iv) transactions permitted by the provisions of this Indenture described above under clauses (1), (2), (5), (6), (8), (9), (10), (11) and (12) of the second paragraph of Section 4.07 of this Indenture; (v) so long as it complies with clause (a) above, the provision of backhaul, uplink, transmission, billing, customer service, programming acquisition and other ordinary course services by the Company or any of its Restricted Subsidiaries to Satellite Communications Operating Corporation and to Transponder Encryption Services Corporation on a basis consistent with past practice; and (vi) any transactions between the Company or any Restricted Subsidiary of the Company and any Affiliate of the Company the Equity Interests of which Affiliate are owned solely by the Company or one of its Restricted Subsidiaries, on the one hand, and by Persons who are not Affiliates of the Company or such Restricted SubsidiarySubsidiaries of the Company, and (b) upon terms which would on the other hand, shall, in each case, not be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatedeemed Affiliate Transactions.
Appears in 2 contracts
Sources: Indenture (Echostar DBS Corp), Indenture (Echostar DBS Corp)
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, enter into any transaction with or series of related transactions (including, without limitation, the sale, transfer, disposition, purchase, exchange or lease of assets, property or services) with, or for the benefit of, any Affiliate upon of its Affiliates (other than Restricted Subsidiaries), except (a) on terms which would be any that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those obtainable which could have been obtained in a comparable transaction at such time from Persons who are not Affiliates of the Company, (b) with respect to a transaction or series of related transactions involving aggregate payments or value equal to or greater than $25,000,000, the Company shall have delivered an Officers' Certificate to the Trustee certifying that such transaction or transactions comply with the preceding clause (a) and that such transaction or transactions have been approved by a majority of the Disinterested Members of the Board of Directors of the Company and (c) with respect to a transaction or series of related transactions involving aggregate payments or value equal to or greater than $50,000,000 (other than agreements whereby the Company or a Restricted Subsidiary of the Company obtains or grants a license or other rights to syndicated entertainment programs in a comparable arm's-length transaction with a Person which is not an Affiliate. The the ordinary course of business), the Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series have obtained a written opinion from an Independent Financial Advisor stating that the terms of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any such transaction or series of transactions between are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved, as the case may be. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions with or among the Company and one the Restricted Subsidiaries, (ii) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or more of its Restricted Subsidiaries employment agreements, compensation or between two employee benefit arrangements and incentive arrangements with any officer, director or more of its Restricted Subsidiaries (provided that no more than 5% employee of the equity interest Company or any Restricted Subsidiary entered into in any the ordinary course of its Restricted Subsidiaries is owned by an Affiliate)business, and (iii) the payment any dividends made in compliance with Section 10.9 of compensation this Indenture, (includingiv) Permitted Investments, without limitation, amounts paid pursuant (v) loans and advances to employee benefit plans) for the personal services of officers, directors and employees of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of its Restricted Subsidiariesbusiness, (vi) transactions pursuant to agreements existing on the date of this Indenture or amendment thereto so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than not disadvantageous to the Company Holders of Securities, (vii) Deeply Subordinated Shareholder Loans and loans and advances on the same terms as the Existing Subordinated Notes or any (viii) the incurrence of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction intercompany Indebtedness which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateconstitutes Permitted Indebtedness.
Appears in 2 contracts
Sources: Indenture (Fox Kids Worldwide Inc), Indenture (Fox Kids Worldwide Inc)
Limitation on Transactions with Affiliates. The Company Partnership shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) the sale, transfer, disposition, purchase, exchange or lease of assets, property or services), other than as provided for, as of the date of this Indenture, in the Operative Agreements, with, or for the personal services of officersbenefit of, directors and employees any Affiliate of the Company Partnership, unless (1) such transaction or any series of related transactions is between the Partnership and its Wholly Owned Restricted SubsidiariesSubsidiaries or between two Wholly Owned Restricted Subsidiaries or (2) (a) such transaction or series of related transactions is on terms that are no less favorable to the Partnership or such Restricted Subsidiary, so long as the Board of Directors case may be, than those which would have been obtained in a comparable transaction at such time from Persons who are not Affiliates of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, Partnership or a sale, transfer Restricted Subsidiary and (b) with respect to a transaction or other disposition (other than series of transactions involving aggregate payments or value equal to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,00050 million, the Partnership shall have delivered an Officer’s Certificate to the Trustee certifying that such Asset Sale transaction or transfer series of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed transactions complies with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any preceding clause (a) and that such transaction which is determined or series of transactions has been approved by the independent members a majority of the Board of Directors of the CompanyGeneral Partner (including a majority of the Disinterested Directors); provided, in their reasonablehowever, good faith judgment that this Section 10.11 will not restrict the Partnership, any Restricted Subsidiary or the General Partner from entering into (as evidenced by a Board Resolution filed with the TrusteeA) to be (a) any employment agreement, stock option agreement, restricted stock agreement or other similar agreement in the best interests ordinary course of business, (B) any transactions permitted by the provisions of this Indenture set forth in Sections 10.10 hereof; (C) any transactions in the ordinary course of business in connection with reinsuring the self-insurance programs or other similar forms of retained insurable risks of the Company Partnership or such Restricted Subsidiary, and (bD) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateany Accounts Receivable Securitization.
Appears in 2 contracts
Sources: Indenture (Amerigas Partners Lp), Indenture (Amerigas Finance Corp)
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate upon terms which would be any less favorable of the Company (other than those obtainable by the Company or a Wholly Owned Restricted Subsidiary Subsidiary) unless (a) such transaction or series of transactions is in writing and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable arm'stransaction in arm’s-length transaction dealings with a Person which is not an Affiliate. The Company shall not, unrelated third party and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactionsb) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) with respect to any transaction or series of transactions between involving aggregate payments in excess of $5,000,000, the Company delivers an Officers’ Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above and one such transaction or more series of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% related transactions has been approved by a majority of the equity interest in any members of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company (and approved by a majority of Independent Directors or, in good faith shall have approved the terms thereof event there is only one Independent Director, by such Independent Director) and deemed the services theretofore (ii) with respect to any transaction or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Saleseries of transactions involving aggregate payments in excess of $10,000,000, or a sale, transfer or other disposition (other than an opinion to the Company or any such Restricted Subsidiary from an independent investment banking, accounting or appraisal firm of its Restricted Subsidiaries) nationally recognized standing that the terms of an interest such transaction are not materially less favorable than those that might reasonably have been obtained in a Restricted Investment, involving comparable transaction at such time on an amount greater than $25,000,000, such Asset Sale or transfer of interest in arm’s-length basis from a Restricted Investment Person that is for fair value as determined by not an opinion of a nationally recognized investment banking firm filed with the TrusteeAffiliate. Notwithstanding the foregoing, this provision shall not prohibit apply to (A) any such transaction which is determined with an officer or director of the Company or Parent entered into in the ordinary course of business (including compensation or employee benefit arrangements with any officer or director of the Company or Parent), (B) any transaction entered into by the independent members Company or one of the Board of Directors its Wholly Owned Restricted Subsidiaries with a Wholly Owned Restricted Subsidiary of the Company, (C) transactions in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with existence on the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, Issue Date and (bD) upon terms which would be obtainable any Restricted Payment permitted by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateSection 1009.
Appears in 2 contracts
Sources: Indenture (Sinclair Broadcast Group Inc), Indenture (Sinclair Broadcast Group Inc)
Limitation on Transactions with Affiliates. The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any transaction material transactions with any Affiliate upon terms which would be any less favorable of its Affiliates (other than those obtainable by the Company Borrower or a Restricted Subsidiary or any entity that becomes a Subsidiary as a result of such transaction and not involving any other Affiliate) unless the terms of such transaction (taken as a whole) are at least as favorable to the Borrower or such Subsidiary as it would obtain at the time in a comparable arm's-arm’s length transaction (which includes, for the avoidance of doubt, any transaction consummated for fair market value) with a Person which that is not an Affiliate. The Company shall notAffiliate (or, and shall not permit any Restricted Subsidiary toif no comparable transaction is available with which to compare such transaction, engage in any such transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be otherwise fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company Borrower or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value Subsidiary as determined by an opinion Authorized Officer of a nationally recognized investment banking firm filed with the TrusteeBorrower in good faith). Notwithstanding the foregoing, the restrictions set forth in this provision covenant shall not prohibit apply to:
(a) transactions pursuant to agreements set forth on Schedule 6.11;
(b) any Restricted Payment permitted by Section 6.05;
(c) any individual Investments in non-Wholly-Owned Subsidiaries and joint ventures not otherwise prohibited by this Agreement as long as the aggregate related transactions of the Borrower and its Subsidiaries with, and aggregate Investments in, such transaction non-Wholly Owned Subsidiary or joint venture is on an arms’ length basis;
(d) any lease (other than on Oil and Gas Properties) entered into between the Borrower or any Subsidiary, as lessee, and any Affiliate of the Borrower, as lessor, which is determined approved by a majority of the independent disinterested members of the Board board of Directors directors of the CompanyBorrower or is otherwise in the ordinary course of business;
(e) employment and severance arrangements and health, in disability, retirement savings, employee benefit and similar insurance or benefit plans between the Borrower and the Subsidiaries and their reasonablerespective directors, good faith judgment officers, employees or consultants (as evidenced by a Board Resolution filed including management and employee benefit plans or agreements, subscription agreements or similar agreements pertaining to the repurchase of Equity Interests pursuant to put/call rights or similar rights with the Trustee) to be (acurrent or former employees, officers, directors or consultants and equity option or incentive plans and other compensation arrangements) in the best interests ordinary course of business or as otherwise approved by the board of directors of the Company Borrower;
(f) any issuance of Equity Interests or such Restricted Subsidiaryother payments, awards or grants in cash, securities, or otherwise pursuant to, or the funding of, employment, consultant and director arrangements, equity options and equity ownership plans approved by the board of directors of the Borrower;
(g) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, consultants, officers and employees of the Borrower and the Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of, or in connection with any services provided to, the Borrower and the Subsidiaries;
(bh) upon terms payments of loans (or cancellation of loans) to officers, directors, employees or consultants which would be obtainable are approved by the Company or a Restricted Subsidiary in a comparable arm'sboard of directors of the Borrower; and
(i) non-length transaction with a Person which is not an Affiliateexclusive licenses of patents, copyrights, trademarks, trade secrets and other intellectual property.
Appears in 2 contracts
Sources: Credit Agreement (EXPAND ENERGY Corp), Credit Agreement (Chesapeake Energy Corp)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary toenter into, engage in any transaction (amend or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate (each an "Affiliate Transaction") or extend, renew, waive or otherwise amend or modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless:
(1) such Affiliate Transaction is between or among the Company and one or more of its the Restricted Subsidiaries or between two or more of its Restricted Subsidiaries Subsidiaries; or
(provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii2) the payment terms of compensation (including, without limitation, amounts paid pursuant such Affiliate Transaction are fair and reasonable to employee benefit plans) for the personal services of officers, directors and employees of the Company or such Restricted Subsidiary, as the case may be, and the terms of such Affiliate Transaction are at least as favorable as the terms which could reasonably be expected to be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's-length basis between unaffiliated parties. In any Affiliate Transaction (or any series of its Restricted Subsidiariesrelated Affiliate Transactions which are similar or part of a common plan) involving an amount or having a fair market value in excess of $2.5 million which is not permitted under clause (1) above, so long as the Company must obtain a Board Resolution of the Board of Directors of the Company certifying that such Affiliate Transaction complies with clause (2) above. In any Affiliate Transaction (or any series of related Affiliate Transactions which are similar or part of a common plan) involving an amount or having a fair market value in good faith shall have approved excess of $10.0 million which is not permitted under clause (1) above, the terms thereof Company must obtain a favorable written opinion as to the fairness of such transaction or transactions, as the case may be, from an Independent Financial Advisor.
(b) Section 4.16(a) will not apply to:
(1) any Restricted Payment that is not prohibited by the provisions described under Section 4.11 or any Permitted Investment;
(2) reasonable fees and deemed the services theretofore compensation paid to, and indemnity provided on behalf of, officers, directors or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to employees of the Company or any Restricted Subsidiary of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value the Company as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined in good faith by the independent members of the Company's Board of Directors or senior management;
(3) any agreement as in effect as of the Company, Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in their reasonable, good faith judgment any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; and
(as evidenced by a Board Resolution filed with 4) the Trustee) to be Company and its Restricted Subsidiaries may make (a) in payments to the best interests of the Company or such Restricted Subsidiary, KEYSOP Plan with respect to bonuses and (b) upon terms which would be obtainable by payments under the Phantom Stock Agreements for key employees of the Company or a and its Restricted Subsidiary in a comparable arm's-length transaction with a Person which is Subsidiaries to the extent that such payments are not an Affiliateprohibited pursuant to the other provisions of this Indenture.
Appears in 2 contracts
Sources: Indenture (Affinity Group Holding, Inc.), Indenture (Affinity Group Inc)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including, without limitation, any Restricted Subsidiary topurchase, engage in sale, lease or exchange of Property, the rendering of any transaction service or the payment of any management, advisory or similar fees, with any Affiliate (other than Holdings, the Borrower or any Subsidiary Guarantor) unless such transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary course of business of Holdings, the Borrower or such Subsidiary, as the case may be, and (c) upon fair and reasonable terms which would be any no less favorable to Holdings, the Borrower or such Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-arm’s length transaction with a Person which is not an AffiliateAffiliate or Holdings, the Borrower or such Subsidiary. The Company Notwithstanding the foregoing, the following transactions shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for be permitted: (i) Holdings, the making Borrower and their respective Subsidiaries may pay customary fees to, and the reasonable out-of-pocket expenses of, its sole member or Board of any Restricted PaymentDirectors, as the case may be, and may provide customary indemnities for the benefit of its sole member or Board of Directors, as the case may be, (ii) any transaction transactions with Subsidiaries that are not Subsidiary Guarantors, joint venture partners or series purchasers or sellers of transactions between goods or services, in each case in the Company and one or more ordinary course of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation business (including, without limitation, amounts paid pursuant to employee benefit plansjoint venture agreements) for and otherwise in compliance with the personal services of officers, directors and employees terms of the Company Loan Documents which are fair to the Borrower or its Subsidiaries, in the good faith determination of the sole member of the Borrower or the senior management thereof, or are on terms at least as favorable as might reasonably been obtained at such time from an unaffiliated party, (iii) any employment agreement entered into by Holdings or any of its Restricted Subsidiaries, so long as Subsidiaries or employee compensation payments in the Board ordinary course of Directors business and consistent with past practices of the Company Borrower or such Subsidiary, (iv) Restricted Payments that are permitted by the provisions of Section 7.6, (v) payments or loans to employees or consultants which are approved by the sole member of the Borrower in good faith shall have approved faith, (vi) in the terms thereof case of foreign joint ventures, transfers of equipment for sale outside of North America in exchange for value not less than the Borrower’s cost of producing such equipment and deemed (vii) transactions effected pursuant to a Permitted Receivables Financing (including the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to servicing of Receivables sold thereunder by the Company Borrower or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate).
Appears in 2 contracts
Sources: Credit Agreement (Alliance Laundry Systems LLC), Credit Agreement (Alliance Laundry Systems LLC)
Limitation on Transactions with Affiliates. The Company shall not(i) Neither the Parent nor any of the Companies will, and shall the Companies will not permit any of their respective Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, enter into or suffer to exist any contract, agreement, arrangement or transaction with with, or for the benefit of, any of its Affiliates (an “Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactionsTransaction”) involving in the aggregate $1,000,000 or more with any Affiliate except for unless (i) the making Parent’s Board of any Directors determines that such Affiliate Transaction is on terms that are fair and reasonable to such Credit Party or such Restricted PaymentSubsidiary, as the case may be, and are no less favorable to such Credit Party or such Restricted Subsidiary, as the case may be, than those that could have been obtained in an arm’s length transaction with third parties who are not Affiliates, and (ii) with respect to any transaction or series Affiliate Transaction involving aggregate payments in excess of transactions between $5,000,000, the Company Parent delivers an officers’ certificate to the Agent certifying that such Affiliate Transaction complies with clause (i) above and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned has been approved by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company Parent.
(ii) The restrictions set forth in good faith Section 8.2(g)(i) shall have approved not apply to:
(A) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company Parent or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value Subsidiaries as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined in good faith by the independent members of the Parent’s Board of Directors or senior management;
(B) transactions exclusively between or among the Parent and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries;
(C) any agreement as in effect as of the CompanyPurchase Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto and any extension of the maturity thereof) and any replacement agreement thereto so long as any such amendment or replacement agreement is not materially more disadvantageous to the holders of the Notes, in their reasonableany material respect than the original agreement as in effect on the Purchase Date;
(D) Restricted Payments permitted by this Agreement;
(E) any employment, good faith judgment (as evidenced stock option, stock repurchase, employee benefit compensation, business expense reimbursement, severance, termination or other employment-related agreements, arrangements or plans entered into by a Board Resolution filed with the Trustee) to be (a) Parent or any of its Restricted Subsidiaries in the best interests ordinary course of business;
(F) transactions relating to the Company issuance of Qualified Capital Stock of, or such Restricted Subsidiaryany other equity investment in, and any Credit Party, including the granting of registration rights with respect thereto;
(bG) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm'sPermitted Investments; and
(H) any transaction on arm’s-length transaction terms with a Person which is not non-Affiliate that becomes an AffiliateAffiliate as a result of such transaction.
Appears in 2 contracts
Sources: Note Purchase Agreement (Vanguard Car Rental Group Inc.), Note Purchase Agreement (Vanguard Car Rental Group Inc.)
Limitation on Transactions with Affiliates. The Company shall will not, and shall will not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by to, directly or indirectly, sell, lease, transfer, or otherwise dispose of any of its Property to, or purchase any Property from, or enter into any contract, agreement, understanding, loan, advance, Guarantee or transaction, including the rendering of services, with or for the benefit of, any Affiliate (each of the foregoing, an Affiliate"AFFILIATE TRANSACTION"), and unless:
(iiia) such Affiliate Transaction or series of Affiliate Transactions is in the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees best interest of the Company or such Restricted Subsidiary and on terms that are fair and reasonable to, and in the best interests of, the Company or the Restricted Subsidiary, as the case may be; and
(b) The Company delivers to the Trustee o with respect to any Affiliate Transaction or series of its Restricted Subsidiariesrelated Affiliate Transactions involving aggregate payments in excess of $10 million but less than $15 million, so long as a certificate of the chief executive, operating or financial officer of the Company evidencing such officer's determination that such Affiliate Transaction or series of Affiliate Transactions complies with clause (a) above and o with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments equal to or in excess of $15 million, a board resolution certifying that such Affiliate Transaction or series of Affiliate Transactions complies with clause (a) above and that such Affiliate Transaction or series of Affiliate Transactions has been approved by the Board of Directors of the Company in good faith shall have approved Company, including a majority of the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent disinterested members of the Board of Directors of the Company, provided that, if there shall not be at least two disinterested members of the Board of Directors of the Company with respect to the Affiliate Transaction, the Company shall, in their reasonableaddition to such board resolution, file with the Trustee a written opinion from an investment banking firm of national standing in the United States which, in the good faith judgment (as evidenced by a of the Board Resolution filed of Directors of the Company, is independent with respect to the Trustee) Company and its Affiliates and 79 85 qualified to perform such task, which opinion shall be to the effect that the consideration to be (a) paid or received in the best interests connection with such Affiliate Transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary, . Despite (a) and (b) upon terms which would above, the following shall not be obtainable deemed Affiliate Transactions:
(1) any employment agreement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and consistent with industry practice;
(2) any agreement or arrangement with respect to the compensation of a director or officer of the Company or any Restricted Subsidiary approved by a majority of the Board of Directors of the Company and consistent with industry practice;
(3) transactions between or among the Company and its Restricted Subsidiaries; provided that no more than 10% of the Voting Stock, on a fully diluted basis, of any such Restricted Subsidiary is owned by an Affiliate of the Company (other than a Restricted Subsidiary);
(4) Restricted Payments and Permitted Investments permitted by the covenant described in Section 3.11 (other than Investments in Affiliates that are not the Company or Restricted Subsidiaries);
(5) transactions pursuant to the terms of or performance of any agreement or arrangement as in effect on the date of the Indenture;
(6) transactions pursuant to and any payments under, compliance with, or performance of obligations under, the Will▇▇▇▇ ▇▇▇ercompany Arrangements;
(7) transactions with respect to wireline or wireless transmission capacity, the lease or sharing or other use of cable or fiber optic lines, equipment, rights-of-way or other access rights, between the Company, or any Restricted Subsidiary, and any other Person; provided that, in the case of this clause (7), such transaction complies with clause (a) in the immediately preceding paragraph;
(8) loans, advances or extensions of credit to employees, officers and directors of the Company or any Restricted Subsidiary made in a comparable arm's-length transaction the 80 86 ordinary course of business and consistent with a Person which is not an Affiliatepast practice or in connection with employee benefits agreements or arrangements approved by the Board of Directors of the Company; provided, however, that if the Company or any Restricted Subsidiary makes loans, advances or extensions of credit to employees, officers and directors in excess or $3 million in the aggregate at any one time outstanding, the Board of Directors of the Company must determine that such loans, advances or extensions of credit in excess of $3 million are fair and reasonable to, and in the best interests of, the Company or the Restricted Subsidiary, as the case may be.
(9) the granting or performance of registration rights under any written registration rights agreement approved by the Board of Directors of the Company;
(10) transactions with Persons solely in their capacity as holders of Debt or Capital Stock of the Company or any of its Subsidiaries, where such Persons are treated no more favorably than holders of Debt or Capital Stock of the Company generally;
(11) sales or issuances of Capital Stock, other than Disqualified Stock, in exchange for cash, securities or Property; provided that such transactions comply with clause (a) in the immediately preceding paragraph; and
(12) any agreement to do any of the foregoing.
Appears in 2 contracts
Sources: Indenture (Williams Communications Group Inc), Indenture (Williams Communications Group Inc)
Limitation on Transactions with Affiliates. The (a) Subsequent to the Issue Date, the Company shall will not, and shall will not permit any Restricted Subsidiary to, engage in directly or indirectly, enter into or permit to exist any transaction with or series of related transactions (including, but limited to, the purchase, sale or exchange of Property, the making of any Investment, the giving of any guarantee to, or the rendering of any service with, any Affiliate upon of the Company, other than transactions among the Company and any Guarantor or any Wholly Owned Subsidiaries) unless (i) such transaction or series of related transactions is on terms which would be any no less favorable than those obtainable by to the Company or a Restricted such Subsidiary than those that could be obtained in a comparable arm's-arm's length transaction with a Person which that is not such an Affiliate. The Affiliate of the Company shall not, and shall not permit any Restricted Subsidiary to, engage in any (ii) (A) with respect to a transaction (or series of related transactions) involving transactions that has a Fair Market Value in excess of $5,000,000 but less than $10,000,000, the aggregate $1,000,000 or more with any Affiliate except for (i) Company delivers an Officers' Certificate to the making of any Restricted Payment, (ii) any Trustee certifying that such transaction or series of related transactions between complies with clause (i) above; or (B) with respect to a transaction or series of related transactions that has a Fair Market Value equal to or in excess of $10,000,000, the Company and one transaction or more series of its Restricted Subsidiaries or between two or more related transactions is approved by a majority of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or (including a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members majority of the Board of Directors of the Companydisinterested directors), which approval is set forth in their reasonable, good faith judgment (as evidenced by a Board Resolution filed certifying that such transaction or series of transactions complies with the Trusteeclause (i) above.
(b) The foregoing provisions shall not be applicable to be (ai) in the best interests reasonable and customary compensation, indemnification and other benefits paid or made available to an officer, director or employee of the Company or a Subsidiary for services rendered in such person's capacity as an officer, director or employee (including reimbursement or advancement of reasonable out-of-pocket expenses and provisions of directors' and officers' liability insurance as well as stock option agreements, restricted stock agreements and consulting or similar agreements), (ii) the making of any Restricted SubsidiaryPayment otherwise permitted by this Indenture, (iii) any existing employment agreement, stock option agreement, restricted stock agreement, consulting agreement or similar agreement, (iv) any agreement in effect on the Issue Date or any amendment thereto (so long as such amendment is, taken as a whole, no less favorable to the holders of the Securities than the original agreement as in effect on the Issue Date) and any transactions contemplated thereby, or (bv) upon terms which would be obtainable by any transaction described in the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatesection entitled "Certain Relationships and Related Transactions" of the Offering Memorandum.
Appears in 2 contracts
Sources: Indenture (Trend Drilling Co), Indenture (Nabors Industries Inc)
Limitation on Transactions with Affiliates. The Company shall not, not and shall not permit any Restricted Subsidiary to, engage in sell, lease, transfer or otherwise dispose of any transaction with of its properties or assets to, or purchase any property or assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate upon (including any Unrestricted Subsidiary) (each of the foregoing, an "Affiliate Transaction"), unless:
(a) such Affiliate Transaction is on terms which would be any that are no less favorable to the Company or its Restricted Subsidiaries than those obtainable that would have been obtained in a comparable transaction by the Company or such Subsidiaries with an unrelated Person; and
(b) if such Affiliate Transaction involves aggregate payments in excess of $25 million, such Affiliate Transaction has been approved by a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% majority of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent disinterested members of the Board of Directors of the Company, and the Company delivers to the Trustee no later than ten business days following a request from the Trustee a resolution of the Board of Directors of the Company set forth in their reasonable, good faith judgment (as evidenced by a Board Resolution filed an Officers' Certificate certifying that such Affiliate Transaction has been so approved and complies with the Trustee) to be clause (a) above; provided, however, that (i) the payment of compensation to directors and management of EchoStar and its Subsidiaries; (ii) transactions between or among the Company and its Wholly Owned Subsidiaries (other than Unrestricted Subsidiaries of the Company); (iii) any dividend, distribution, sale, conveyance or other disposition of any assets of, or Equity Interests in, any Non-Core Assets or ETC or the proceeds of a sale, conveyance or other disposition thereof, in accordance with the best interests provisions of this Indenture; (iv) transactions permitted by the provisions of this Indenture described above under clauses (1), (2), (4), (5), (6), (8), (9), (10), (11), (14) and (15) of the second paragraph of Section 4.07 of this Indenture; (v) so long as it complies with clause (a) above, the provision of backhaul, uplink, transmission, billing, customer service, programming acquisition and other ordinary course services by the Company or any of its Restricted Subsidiaries to Satellite Communications Operating Corporation and to Transponder Encryption Services Corporation on a basis consistent with past practice; and (vi) any transactions between the Company or any Restricted Subsidiary of the Company and any Affiliate of the Company the Equity Interests of which Affiliate are owned solely by the Company or one of its Restricted Subsidiaries, on the one hand, and by Persons who are not Affiliates of the Company or such Restricted SubsidiarySubsidiaries of the Company, and (b) upon terms which would on the other hand, shall, in each case, not be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate.deemed Affiliate Transactions. 55 62
Appears in 2 contracts
Sources: Indenture (Echostar Broadband Corp), Indenture (Echostar Communications Corp)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including, without limitation, any Restricted Subsidiary topurchase, engage in sale, lease or exchange of Property, the rendering of any transaction service or the payment of any management, advisory or similar fees, with any Affiliate (other than Holdings, the Borrower or any Subsidiary Guarantor) unless such transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary course of business of Holdings, the Borrower or such Subsidiary, as the case may be, and (c) upon fair and reasonable terms which would be any no less favorable to Holdings, the Borrower or such Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-arm's length transaction with a Person which is not an AffiliateAffiliate or Holdings, the Borrower or such Subsidiary. The Company Notwithstanding the foregoing, the following transactions shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for be permitted: (i) the making Borrower and its Subsidiaries may pay management, advisory or similar fees and expenses to the Sponsor and its Control Investment Affiliates in an aggregate amount not to exceed $1,000,000 in any fiscal year of any Restricted Paymentthe Borrower (plus reasonable out-of-pocket expenses incurred by Sponsor and its Affiliates in providing services to Holdings and the Borrower), (ii) any transaction or series Holdings, the Borrower and their respective Subsidiaries may pay customary fees to, and the reasonable out-of-pocket expenses of, its Board of transactions between Managers and may provide customary indemnities for the Company and one or more benefit of members of its Restricted Subsidiaries or between two or more Board of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate)Managers, and (iii) the payment by Holdings or the Borrower, in connection with any Acquisition, divestiture or financing transaction that is consummated by Holdings, the Borrower or any of compensation their respective subsidiaries, of a transaction fee and expenses to the Sponsor and its Affiliates pursuant to the ▇▇▇▇ Advisory Services Agreement (as in effect on the date hereof) for such transaction, (iv) transactions with Subsidiaries that are not Subsidiary Guarantors, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business (including, without limitation, amounts paid pursuant to employee benefit plansjoint venture agreements) for and otherwise in compliance with the personal services of officers, directors and employees terms of the Company Loan Documents which are fair to the Borrower or its Subsidiaries, in the good faith determination of the Board of Managers of the Borrower or the senior management thereof, or are on terms at least as favorable as might reasonably been obtained at such time from an unaffiliated party, (v) any employment agreement entered into by Holdings or any of its Subsidiaries or employee compensation payments in the ordinary course of business and consistent with past practices of the Borrower or such Subsidiary, (vi) Restricted SubsidiariesPayments that are permitted by the provisions of Section 7.6, so long as (vii) payments or loans to employees or consultants which are approved by the Board of Directors of the Company Managers in good faith shall have approved faith, (viii) in the terms thereof case of foreign joint ventures, transfers of equipment for sale outside of North America in exchange for value not less than the Borrower's cost of producing such equipment and deemed (ix) transactions effected pursuant to a Permitted Receivables Financing (including the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to servicing of Receivables sold thereunder by the Company Borrower or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate).
Appears in 2 contracts
Sources: Credit Agreement (Alliance Laundry Corp), Credit Agreement (Alliance Laundry Corp)
Limitation on Transactions with Affiliates. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company business or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) enter into any transaction or series of related transactions with or for the benefit of any Affiliate, any holder of 5% or more of any class of Equity Interests or any officer, director or employee of the Company or any Restricted Subsidiary (each, an "Affiliate Transaction"), unless such Affiliate Transaction is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than could reasonably be obtained at such time in a comparable transaction with an unaffiliated third party. For any such transaction that involves value in excess of $5.0 million, the Company shall deliver to the Trustee an Officers' Certificate stating that a majority of the Disinterested Directors has determined that the transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution delivered to the Trustee. For any such transaction that involves value in excess of $12.5 million, the Company shall also obtain a written opinion from an Independent Financial Advisor to the effect that such transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary, as the case may be. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions between or among the Company and one or more of its Restricted Subsidiaries or between two or more of its among Restricted Subsidiaries Subsidiaries; (provided that no more than 5% ii) customary directors' fees, indemnification and similar arrangements, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the equity interest Company or any Restricted Subsidiary entered into in any the ordinary course of its Restricted Subsidiaries is owned by an Affiliatebusiness (including customary benefits thereunder), and ; (iii) the payment of compensation (including, without limitation, amounts paid transactions pursuant to employee benefit plansagreements in effect on the Issue Date, as such agreements are in effect on the Issue Date or as thereafter amended or supplemented in a manner not adverse to the Holders; (iv) for the personal services of loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof business and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration thereforconsistent with past business practices; and provided further that for (v) any Asset Sale, or a sale, transfer or other disposition (other than to transactions between the Company or any Restricted Subsidiary, on the one hand, and any Affiliate of its Restricted Subsidiaries) of an interest the Company engaged primarily in a Restricted InvestmentTelecommunications Business, involving an amount greater than $25,000,000on the other hand, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (ax) in the best interests ordinary course of business and consistent with commercially reasonable practices or (y) approved by a majority of the Disinterested Directors; (vi) any payment pursuant to any tax sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes; provided that such payment is not greater than that which the Company would be required to pay as a stand-alone taxpayer; (vii) the pledge of Equity Interests of Unrestricted Subsidiaries to support the Indebtedness thereof; and (viii) payment of dividends in respect of Equity Interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a any Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatepermitted under Section 4.11.
Appears in 2 contracts
Sources: Indenture (Hermes Europe Railtel B V), Indenture (Hermes Europe Railtel B V)
Limitation on Transactions with Affiliates. The Company Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company business or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in enter into any transaction (or series of related transactions) involving in with or for the aggregate $1,000,000 benefit of any of their respective Affiliates or any beneficial holder of 10% or more with of the Equity Interests of Borrower or any Affiliate except for (i) the making officer or director of Borrower or any Restricted PaymentSubsidiary (each an "Affiliate Transaction"), unless such --------------------- Affiliate Transaction is on terms which are no less favorable to Borrower or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction with an unaffiliated third party. If such Affiliate Transaction (ii) any transaction or series of transactions between the Company related Affiliate Transactions) involves aggregate payments or other consideration having a Fair Market Value in excess of $15.0 million, Borrower shall not, and one shall not cause or more of its permit any Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% Subsidiary to, enter into such Affiliate Transaction, unless a majority of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent disinterested members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed Borrower shall have approved such Affiliate Transaction and determined that such Affiliate Transaction complies with the Trustee) to be (a) foregoing provisions; provided, however, that if such -------- ------- Affiliate Transaction is in the best interests ordinary course of business consistent with the Company past practice of any business of Borrower or such a Restricted Subsidiary, including the High Power Satellite Transmission Business, then there shall be no need to comply with this sentence. In the event that Borrower obtains a written opinion from an Independent Financial Advisor stating that the terms of an Affiliate Transaction are fair, from a financial point of view, to Borrower or the Restricted Subsidiary involved in such Affiliate Transaction, as the case may be, such opinion will conclusively meet the requirements of the first sentence of this paragraph and there shall be no need to comply with the second sentence of this paragraph. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions with or among Borrower and any Restricted Subsidiary or between or among Restricted Subsidiaries; (ii) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of Borrower or any Restricted Subsidiary entered into in the ordinary course of business (including customary benefits thereunder) and payments under any indemnification arrangements permitted by applicable law; (iii) the Basic Documents and the Restructuring Agreements, each as in effect on the Closing Date, including any amendment or extension thereof that does not otherwise violate any other covenant set forth in this Agreement, and any transactions undertaken pursuant to any other contractual obligations in existence on the Closing Date (as in effect on the Closing Date); (iv) the issue and sale by Borrower to its stockholders of Qualified Equity Interests; (v) any Restricted Payments made in compliance with Section 6A.1; (vi) loans and advances to officers, directors and employees of Borrower and the Restricted Subsidiaries for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business and consistent with past business practices; (vii) the Incurrence of intercompany Indebtedness permitted pursuant to clause (d) of the second paragraph of Section 6A.2; (viii) the pledge of Equity Interests of Unrestricted Subsidiaries to support the Indebtedness thereof; and (bix) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateRestructuring Transactions.
Appears in 2 contracts
Sources: Senior Subordinated Credit Agreement (Primestar Inc), Senior Subordinated Credit Agreement (Primestar Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, enter into or conduct any transaction or series of related transactions (including, the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate upon of the Company (an "Affiliate Transaction") unless such Affiliate Transaction is on terms which would be any (i) that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those obtainable that could be obtained at the time of such transaction in arm's-length dealings with a Person who is not such an Affiliate, (ii) that, in the event such Affiliate Transaction involves an aggregate amount in excess of $10 million, (1) are set forth in writing and (2) have been approved by a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction, other than as a Member of the Company generally, and (iii) that, in the event that such Affiliate Transaction involves an amount in excess of $25 million, have been determined by a nationally recognized appraisal or investment banking firm to be fair, from a financial standpoint, to the Company and its Restricted Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit (i) any Restricted Payment permitted to be paid pursuant to Section 4.04, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements approved by the Board of Directors, (iii) loans or advances to employees in the ordinary course of business in accordance with past practices of the Company, but in any event not to exceed $5 million in the aggregate outstanding at any one time, (iv) the payment of reasonable fees to directors of the Company and its Subsidiaries who are not employees of the Company or its Subsidiaries, (v) any transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, (vi) any agreement as in effect as of the Closing Date on the terms described in the Offering Memorandum or any amendment or replacement agreement thereto (so long as any such amendment or replacement agreement is not disadvantageous to the Holders of the Securities in any material respect); or (vii) Securitizations permitted by Section 4.03 and Section 4.06; (viii) loans to or from Agriliance and MoArk in the ordinary course of business for cash management purposes in an aggregate principal amount not to exceed $20 million outstanding at any time, which loans shall not be outstanding for more than 30 days; (ix) the provision by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, the ordinary course of business of corporate services (such as legal services and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactionsinformation technology services) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors leasing of the Company's employees, consistent with past practices, to Affiliates in their reasonable, good faith judgment which the Company owns Capital Stock; or (as evidenced by a Board Resolution filed with the Trusteex) to be (a) any licensing or similar agreement entered into in the best interests ordinary course of business relating to the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by use of intellectual property between the Company or a Restricted Subsidiary and Affiliates in a comparable arm's-length transaction with a Person which is not an Affiliatethe Company owns Capital Stock.
Appears in 2 contracts
Sources: Indenture (Land O Lakes Inc), Indenture (Land O Lakes Inc)
Limitation on Transactions with Affiliates. The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in , contract, agreement, loan, advance or Guarantee with, or for the aggregate $1,000,000 or more with benefit of, any Affiliate except for of the Company (each of the foregoing, an “Affiliate Transaction”), unless:
(i) such Affiliate Transaction is on terms that are not materially less favorable to the making of any Restricted Payment, Company or the relevant Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Subsidiary with a Person who is not an Affiliate;
(ii) with respect to any transaction Affiliate Transaction or series of transactions between related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, the Company and one or more delivers to the Trustee a resolution adopted in good faith by the majority of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company approving such Affiliate Transaction and set forth in good faith shall have approved an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (i) above; and
(iii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, the terms thereof Company must obtain and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than deliver to the Company or any of its Restricted Subsidiaries) of an interest in Trustee a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an written opinion of a nationally recognized investment banking banking, accounting or appraisal firm filed with stating that the Trusteetransaction is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view. Notwithstanding the foregoingThe foregoing limitation does not limit, this provision and shall not prohibit any such transaction which is determined apply to:
(1) Restricted Payments that are permitted by the independent provisions of this Indenture pursuant to SECTION 4.7 and Investments permitted pursuant to the definition of Permitted Investments (other than pursuant to clause (f) of such definition);
(2) the payment of reasonable and customary fees and indemnities and other benefits to members of the Board of Directors of the Company or a Restricted Subsidiary who are outside directors;
(3) the payment of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary as determined by the Board of Directors thereof in good faith;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) any agreement or arrangement as in effect on the Issue Date and any amendment, modification thereto so long as such amendment or modification is not more disadvantageous to the Holders of the Notes in any material respect, including, without limitation, transactions with Triumph Receivables, LLC in connection with the Existing Receivables Facility;
(6) any contribution of capital to the Company;
(7) transactions permitted by, and complying with, SECTION 5.1;
(8) any transaction with a joint venture, partnership, limited liability company or other entity (other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Company or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity;
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, in their reasonableeach case, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests ordinary course of business and consistent with past practice and on terms that are not materially less favorable to the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable as the case may be, as determined in good faith by the Company or a Restricted Subsidiary Company, than those that could be obtained in a comparable arm's-arm’s length transaction with a Person which that is not an AffiliateAffiliate of the Company; and
(10) transactions effected as part of a Qualified Receivables Transaction.
Appears in 2 contracts
Sources: Indenture (Triumph Group Inc), Indenture (Triumph Group Inc)
Limitation on Transactions with Affiliates. The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant the sale, purchase, exchange or lease of assets or property or the rendering of any service) with, or for the benefit of, any Affiliate of the Parent Guarantor or any Restricted Subsidiary’s Affiliate unless such transaction or series of transactions is entered into in good faith (and, in the case of such a transaction or series of transactions having a value greater than €20,000,000, in writing) and:
(a) such transaction or series of transactions is on terms that, taken as a whole, are not materially less favorable to the Parent Guarantor or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable arm’s-length transaction with third parties that are not Affiliates;
(b) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value greater than €20,000,000, the Parent Guarantor shall deliver a resolution of its board of directors (set out in an Officer’s Certificate to the Trustee) resolving that such transaction complies with clause (a) above and that the fairness of such transaction has been approved by a majority of the Disinterested Directors (or in the event there is only one Disinterested Director, by such Disinterested Director) of the Parent Guarantor’s board of directors; and
(c) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services, in each case having a value greater than €50,000,000, the Parent Guarantor shall deliver to the Trustee a written opinion of an accounting, appraisal, investment banking or advisory firm of international standing stating that the transaction or series of transactions is on terms not less favorable to the Parent Guarantor or such Restricted Subsidiary than might have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate. Notwithstanding the foregoing, the restrictions set forth in this description will not apply to:
(i) customary directors’ fees, indemnification and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit plans) for the personal services of officersarrangements, directors and employees of the Company including stock options or any of its Restricted Subsidiarieslegal fees, so long as the Board Parent Guarantor’s board of Directors of the Company in good faith shall have directors has approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees payments to be fair consideration therefor; provided that the restrictions set forth in this description shall apply to any fees paid in respect of engineering or other similar services to any Unrestricted Subsidiary or any employee thereof;
(ii) any Restricted Payment not prohibited by Section 4.08 or the making of an Investment that is a Permitted Investment;
(iii) the agreements and arrangements existing on the Issue Date and any amendment, modification or supplement thereto; provided further that for any Asset Salesuch amendment, modification or supplement to the terms thereof is not more disadvantageous to the Holders and to the Parent Guarantor and the Restricted Subsidiaries, as applicable, in any material respect than the original agreement or arrangement as in effect on the Issue Date and provided, further, that such amendment or modification is (x) on a basis substantially similar to that which would be conducted in an arm’s-length transaction with third parties who are not Affiliates and (y) in the case of any transaction having a Fair Market Value of greater than €20,000,000, approved by the Parent Guarantor’s board of directors (including a majority of the Disinterested Directors);
(iv) any payments or other transactions pursuant to a tax sharing agreement between the Parent Guarantor and any other Person or a sale, transfer or Restricted Subsidiary and any other disposition (other than to Person with which the Company Parent Guarantor or any of its Restricted SubsidiariesSubsidiaries file a consolidated tax return or with which the Issuers are part of a consolidated group for tax purposes or any tax advantageous group contribution made pursuant to applicable legislation, provided, however, that any such payments do not exceed the amounts of such tax that would have been payable by the Parent Guarantor and its Restricted Subsidiaries on a stand-alone basis and the related tax liabilities of the Parent Guarantor and its Restricted Subsidiaries are relieved thereby;
(v) transactions in the ordinary course of business with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor owns, directly or through a Restricted Subsidiary, Capital Stock in, or controls, such Person;
(vi) the issuance of securities pursuant to, or for the purpose of the funding of, employment arrangements, stock options, and stock ownership plans, as long as the terms thereof are or have been previously approved by the Parent Guarantor’s board of directors;
(vii) the granting and performance of registration rights for the Parent Guarantor’s securities;
(viii) (A) issuances or sales of Qualified Capital Stock of the Parent Guarantor or Deeply Subordinated Funding and (B) any amendment, waiver or other transaction with respect to any Deeply Subordinated Funding in compliance with the other provisions of this Indenture;
(ix) pledges by the Parent Guarantor or any Restricted Subsidiary of the Capital Stock of an interest in Unrestricted Subsidiary or a Permitted Joint Venture securing Debt owing by such Unrestricted Subsidiary or a Permitted Joint Venture;
(x) transactions between any joint venture and a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer Subsidiary made in the ordinary course of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed business and consistent with the Trustee. Notwithstanding Restricted Subsidiary’s past practices; provided that the foregoingpartner in such joint venture is not an Affiliate of the Parent Guarantor or the applicable Restricted Subsidiary;
(xi) transactions between or among the Parent Guarantor and the Restricted Subsidiaries or between or among Restricted Subsidiaries;
(xii) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services or providers of employees or other labor, in each case in the ordinary course of business and otherwise in compliance with the terms of this provision shall not prohibit any such transaction which is determined by Indenture that are fair to the independent Parent Guarantor or the Restricted Subsidiaries, in the reasonable determination of the members of the Board of Directors of the CompanyParent Guarantor or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;
(xiii) any transactions in their reasonablerespect of which the Parent Guarantor or any of its Restricted Subsidiaries delivers to the Trustee a letter from an accounting, good faith judgment (as evidenced by a Board Resolution filed appraisal or investment banking firm of international standing, or other recognized independent expert of international standing with experience appraising the Trustee) to be (a) in the best interests terms and conditions of the Company type of transaction or such Restricted Subsidiaryseries of related transactions for which an opinion is required, and stating that the transaction or series of related transactions is (bx) upon fair from a financial point of view taking into account all relevant circumstances or (y) on terms which would be obtainable by the Company or a Restricted Subsidiary not less favorable than might have been obtained in a comparable arm'stransaction at such time on an arm’s-length transaction with basis from a Person which who is not an Affiliate;
(xiv) pledges of equity interests of Unrestricted Subsidiaries; and
(xv) any employment agreement, consultancy agreement or employee benefit arrangement with any employee, consultant, officer or director of the Parent Guarantor or any Restricted Subsidiary, including under any stock option, stock appreciation rights, stock incentive or similar plans, entered into in the ordinary course of business.
Appears in 2 contracts
Sources: Secured Indenture (Ardagh Finance Holdings S.A.), Senior Indenture (Ardagh Finance Holdings S.A.)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including any Restricted Subsidiary topurchase, engage in sale, lease or exchange of property or the rendering of any transaction service, with any Affiliate unless such transaction is (a) otherwise permitted under this Agreement, and (b) upon terms which would be any no less favorable to the Borrower or such Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-arm’s length transaction with a Person which is not an Affiliate. The Company ; provided that nothing contained in this Section 7.10 shall notbe deemed to prohibit:
(a) the Borrower or any of its Subsidiaries from entering into or performing any consulting, and shall management or employment agreements or other compensation arrangements with a director, officer or employee of the Borrower or any of its Subsidiaries that provides for annual aggregate base compensation not permit in excess of $2,000,000 for each such director, officer or employee;
(b) the Borrower or any Restricted Subsidiary toof its Subsidiaries from entering into or performing an agreement with any CD&R Investor or any Affiliate of any CD&R Investor for the rendering of management, engage in any transaction (consulting or series of related transactions) involving financial advisory services for compensation not to exceed in the aggregate $1,000,000 or more with any Affiliate except for 2,000,000 per year plus reasonable out-of-pocket expenses;
(i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iiic) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees transaction expenses in connection with this Agreement or any of the Company Transactions;
(d) the Borrower or any of its Restricted SubsidiariesSubsidiaries from entering into, so long as the Board making payments pursuant to and otherwise performing an indemnification and contribution agreement in favor of Directors any Permitted Holder and each person who is or becomes a director, officer, agent or employee of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company Borrower or any of its Restricted SubsidiariesSubsidiaries or any Parent Entity, in respect of liabilities (A) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of an securities by any Parent Entity (provided that, if such Parent Entity shall own any material assets other than the Capital Stock of the Borrower or another Parent Entity, or other assets relating to the ownership interest of such Parent Entity in a Restricted Investment, involving an amount greater than $25,000,000the Borrower or another Parent Entity, such Asset Sale or transfer of interest in a Restricted Investment is for fair value liabilities shall be limited to the reasonable and proportional share, as determined by an opinion the Borrower in its reasonable discretion, of such liabilities relating or allocable to the ownership interest of such Parent Entity in the Borrower or another Parent Entity and such other related assets) or the Borrower or any of its Subsidiaries, (B) incurred to third parties for any action or failure to act of the Borrower or any of its Subsidiaries or any Parent Entity or any of their predecessors or successors, (C) arising out of the performance by any Affiliate of any CD&R of management consulting or financial advisory services provided to the Borrower or any of its Subsidiaries or any Parent Entity, (D) arising out of the fact that any indemnitee was or is a nationally recognized investment banking firm filed with director, officer, agent or employee of the Trustee. Notwithstanding Borrower or any of its Subsidiaries or any Parent Entity, or is or was serving at the foregoing, this provision shall not prohibit request of any such transaction which is determined corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or enterprise or (E) to the fullest extent permitted by the independent members Delaware or other applicable state law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of the Board Borrower or any of Directors its Subsidiaries or any Parent Entity;
(e) the Borrower or any of its Subsidiaries from (i) performing any agreements or commitments with or to any Affiliate existing on the CompanyClosing Date (including the Investment Documents) or (ii) entering into and performing any Tax Sharing Agreement;
(f) any transaction permitted under Sections 3.4(b), in their reasonable7.4, good faith judgment (as evidenced by a Board Resolution filed with the Trustee7.5, 7.7, 7.8(e) to be (a) in the best interests of the Company or such Restricted Subsidiary7.8(f), and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length any transaction with a Person which is not an AffiliateWholly Owned Subsidiary of the Borrower;
(g) the Borrower from paying to CD&R, any CD&R Investor or any of their respective Affiliates fees of up to $8,250,000 in the aggregate, plus out-of-pocket expenses, in connection with the Transactions;
(h) the Transactions and all transactions relating thereto and agreements in connection therewith, including in connection with the Investment Documents; and
(i) any issuance or sale of Capital Stock of the Borrower or capital contribution to the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Nci Building Systems Inc), Credit Agreement (Nci Building Systems Inc)
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each of the foregoing, an “Affiliate Transaction”) involving aggregate consideration in an amount greater than $5.0 million, unless (i) such Affiliate Transaction is on terms that are no less favorable to Company or the relevant Restricted Subsidiary tothan those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $25.0 million, engage a Board Resolution authorizing and determining the fairness of such Affiliate Transaction as described in clause (i), approved by a majority of the disinterested members of the Board of Directors of the Company. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the first paragraph:
(i) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees, agents or consultants of the Company or any Restricted Subsidiary as determined in good faith by the Company’s Board of Directors or senior management including, without limitation, any issuance of Equity Interests of the Company or amounts paid pursuant to stock option, stock ownership or other benefit plans;
(ii) transactions between or among the Company and/or its Restricted Subsidiaries or any Parent Entity;
(iii) any agreement or arrangement as in effect on the date hereof or upon consummation of the Formation Transaction and any replacement agreement or arrangement thereto so long as any such amendment or replacement agreement or arrangement, taken as a whole, is not more disadvantageous to the Company or its Restricted Subsidiaries, as the case may be, in any transaction material respect than the original agreement as in effect on the date hereof or upon consummation of the Formation Transaction;
(iv) loans or advances to officers of the Company and its Restricted Subsidiaries not in excess of $3.0 million at any time outstanding and loans or advances to other employees in accordance with policies of the Company and its Restricted Subsidiaries;
(v) any Permitted Investment or any Restricted Payment that is permitted by Section 4.10 hereof;
(vi) transactions with suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture, which are fair to the Company and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or the senior management of the Company, and are on terms that, taken as a whole, are not materially less favorable to the Company or the relevant Restricted Subsidiary than those that might reasonably have been obtained at such time from a Person that is not an Affiliate;
(vii) the issuance or sale of Equity Interests, other than Disqualified Stock, of the Company to any Affiliate upon terms which would be or to any less favorable than those obtainable director, officer, employee or consultant of the Company, any Parent Entity or any Subsidiary of the Company otherwise permitted under this Indenture;
(viii) advances or reimbursements to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business;
(ix) any capital contribution made by the Company or a Restricted Subsidiary in to a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction joint venture to the extent otherwise permitted under this Indenture;
(or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (iix) any transaction employment agreement, consulting, service, termination, severance agreement or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of indemnification agreement entered into with the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(xi) any merger, consolidation or reorganization of the Company (otherwise permitted by this Indenture) with an Affiliate of the Company solely for the purpose of (a) reorganizing to facilitate an initial public offering of securities of the Company or any Parent Entity, (b) forming or collapsing a holding company structure or (c) reincorporating the Company in a new jurisdiction;
(xii) pledges of Equity Interest of Unrestricted Subsidiaries;
(xiii) any transaction with, so long as and payment of fees, expenses and indemnities paid to, an Affiliate in connection with the Formation Transactions;
(xiv) franchise, management and other contracts regarding the operation of resorts and the provision of services and payments in respect thereof in the ordinary course consistent with the Master Development Agreement; and
(xv) customary payments by the Company and the Restricted Subsidiaries to the Permitted Holders made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions or divestitures) in an aggregate amount not to exceed $1.0 million in any fiscal year, which payments are approved by the majority of the members of the Board of Directors or a majority of the disinterested members of the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatefaith.
Appears in 2 contracts
Sources: Indenture (Playa Hotels & Resorts N.V.), Indenture (Playa Hotels & Resorts B.V.)
Limitation on Transactions with Affiliates. The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any business or enter into or suffer to exist any transaction with or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate upon of the Issuer (an “Affiliate Transaction”) involving payments in excess of $5.0 million, unless:
(a) the terms which would be any of such Affiliate Transaction are no less favorable to the Issuer or that Restricted Subsidiary, as the case may be, taken as a whole, than those obtainable by the Company or a Restricted Subsidiary that could be obtained in a comparable arm'sarm’s-length transaction with a Person which that is not an AffiliateAffiliate of the Issuer, and
(b) if the Affiliate Transaction involves aggregate payments or value in excess of $25.0 million, the Board of Directors (including a majority of the disinterested members of the Board of Directors) approves the Affiliate Transaction and, in its good faith judgment, believes that the Affiliate Transaction complies with clause (a) of this paragraph as evidenced by a resolution of the Board of Directors promptly delivered to the Trustee. The Company shall notNotwithstanding the foregoing limitation, and shall not permit the Issuer or any Restricted Subsidiary to, engage in any transaction may enter into or suffer to exist the following:
(or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (iia) any transaction or series of transactions between the Company Issuer and one or more of its Restricted Subsidiaries or between two or more Restricted Subsidiaries;
(b) any Restricted Payment permitted to be made pursuant to Section 4.05 or any Permitted Investment;
(c) any reasonable or customary employment, consulting, service, severance, termination agreement, employee benefit plan, compensation arrangement, indemnification arrangement, or any similar arrangement entered into by the Issuer or a Restricted Subsidiary with a current or former director, officer or employee of the Issuer or a Restricted Subsidiary and payments related thereto; or any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Issuer, restricted stock plans, restricted stock unit plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of directors, officers and employees of the Issuer or a Restricted Subsidiary approved by the Board of Directors of the Issuer;
(i) reimbursement of employee travel and lodging costs and other business expenses incurred in the ordinary course of business and (ii) loans and advances to employees made in the ordinary course of business in compliance with applicable laws and consistent with the past practices of the Issuer or that Restricted Subsidiary, as the case may be;
(e) any issuance of shares of Capital Stock (other than Disqualified Stock) of the Issuer;
(f) any agreement as in effect on the Issue Date or any amendment, modification, supplement, extension or renewal thereto (so long as such amendment, modification, supplement, extension or renewal is not materially adverse to the interests of the Holders of the Notes) or any transaction contemplated thereby;
(g) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged or consolidated with or into the Issuer or a Restricted Subsidiary, as such agreement may be amended, modified, supplemented, extended or renewed from time to time; provided that such agreement was not entered into in contemplation of such acquisition, merger or consolidation, and so long as any such amendment, modification, supplement, extension or renewal, when taken as a whole, is not materially more disadvantageous to the Holders, in the reasonable determination of two Officers of the Issuer (as evidenced by an Officers’ Certificate), than the applicable agreement as in effect on the date of such acquisition, merger or consolidation;
(h) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Issuer and its Restricted Subsidiaries (and otherwise in compliance with the terms of this Indenture; provided that no more than 5% in the reasonable determination of two Officers of the equity interest in any of its Restricted Subsidiaries is owned Issuer (as evidenced by an AffiliateOfficers’ Certificate), such transactions are on terms that are not materially less favorable, when taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person;
(i) transactions in which the Issuer or any Restricted Subsidiary delivers to the Trustee a letter or opinion from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, than those that might reasonably have been obtained by the Issuer or such Restricted Subsidiary in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate;
(j) the Transactions, the Auto Care Transactions and (iii) the Battery Transactions and the payment of compensation all fees and expenses related to the Transactions, the Auto Care Transactions and the Battery Transactions;
(k) any service, purchase, lease, supply or similar agreement entered into in the ordinary course of business (including, without limitation, amounts paid pursuant to employee benefit plansany joint venture agreement) for between the personal services of officers, directors and employees of the Company Issuer or any Restricted Subsidiary and any Affiliate (other than an Unrestricted Subsidiary) that is a customer, client, supplier, purchaser or seller of its Restricted Subsidiariesgoods or services, so long as the Board of Directors of the Company Issuer determines in good faith shall have approved the that any such agreement is on terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than not materially less favorable to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company Issuer or such Restricted Subsidiary, and (b) upon terms which would Subsidiary than those that could be obtainable by the Company or a Restricted Subsidiary obtained in a comparable arm's-length arms’-length transaction with a Person which an entity that is not an Affiliate;
(l) pledges of equity interests of Unrestricted Subsidiaries to secure Debt of such Unrestricted Subsidiaries; and
(m) transactions entered into as part of a Permitted Receivables Financing on customary terms (as determined by the Issuer’s Board of Directors).
Appears in 2 contracts
Sources: Indenture (Energizer Holdings, Inc.), Indenture (Energizer Holdings, Inc.)
Limitation on Transactions with Affiliates. The Company (a) Stage shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) enter into any transaction or series of related transactions between (including the Company purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with any Affiliate (including any Accounts Receivable Subsidiary) of Stage (an "Affiliate Transaction") unless (i) the terms of such Affiliate Transaction are (A) set forth in writing and one (B) as favorable to Stage or more such Restricted Subsidiary as terms that would be obtainable at the time for a comparable transaction or series of its Restricted Subsidiaries or between two or more related transactions in arm's-length dealings with an unrelated third Person, (ii) if such Affiliate Transaction involves an amount in excess of its Restricted Subsidiaries (provided that no more than 5% $3 million, a majority of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent disinterested members of the Board of Directors of the CompanyStage have approved, by resolution, and determined in their reasonable, good faith judgment that such Affiliate Transaction meets the criteria set forth in (i)(B) above and (iii) if such Affiliate Transaction involves an amount in excess of $7.5 million (other than a contribution, disposition or other transfer of Receivables to an Accounts Receivable Subsidiary as evidenced permitted under the Indentures and the related customary contractual arrangements and Customary Securitization Undertakings), such Affiliate Transaction is determined by a Board Resolution filed with the Trustee) nationally recognized investment banking firm to be (a) in the best interests of the Company fair from a financial standpoint to Stage or such Restricted Subsidiary, and as the case may be.
(b) upon terms which would The provisions of the foregoing paragraph (a) shall not prohibit (i) any Restricted Payment permitted to be obtainable paid pursuant to the covenant described in Section 5.05, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Company Board of Directors of Stage, (iii) loans or advances to employees in the ordinary course of business, but in any event not to exceed $5 million in the aggregate outstanding at any one time, (iv) the payment of reasonable and customary fees to directors of Stage and its Restricted Subsidiaries, (v) any transaction between Stage and a Restricted Wholly Owned Subsidiary or between Wholly Owned Subsidiaries, (vi) any written agreement as in a comparable arm's-length transaction with a Person which effect on the Issue Date and as amended from time to time, PROVIDED that any such amendment is not an Affiliateless favorable in any material respect to Stage and its Subsidiaries than the terms in effect on the Issue Date, and (vii) indemnification payments to directors and officers of Stage in accordance with applicable state laws.
Appears in 2 contracts
Sources: Indenture (Stage Stores Inc), Indenture (Stage Stores Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not enter into or permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the personal services benefit of, any of officersits Affiliates (each an "Affiliate Transaction"), directors other than (x) Affiliate Transactions permitted under paragraph (b) below and employees (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or any such Restricted Subsidiary. All Affiliate Transactions (and each series of its Restricted Subsidiaries, so long as related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $1,000,000 shall be approved by the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate fair market value of more than $5,000,000, the Company or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to the Company or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(b) upon terms which would be obtainable The restrictions set forth in clause (a) shall not apply to (i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company (including customary provisions contained in employment agreements with executive officers of the Company) as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions exclusively between or among the Company and any of its Wholly Owned Restricted Subsidiaries or exclusively between or among such Wholly Owned Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by Section 5.3; (v) the payments by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateunder that certain lease of its Richmond, California facility between the Company and ▇. ▇. ▇▇▇▇▇▇▇▇ Co. dated as of December 1, 1995, as amended on December 13, 1995; and (vi) the payments by the Company under that certain residential lease rental agreement and deposit receipt between the Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as guardian of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, dated as of December 13, 1995.
Appears in 2 contracts
Sources: Indenture (Color Spot Nurseries Inc), Indenture (Color Spot Nurseries Inc)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including, without limitation, any Restricted Subsidiary topurchase, engage in sale, lease or exchange of Property, the rendering of any transaction service or the payment of any management, advisory or similar fees, with any Affiliate (other than Holdings, the Borrower or any Subsidiary Guarantor) unless (1) such transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary course of business of Holdings, the Borrower or such Subsidiary, as the case may be, and (c) upon fair and reasonable terms which would be any no less favorable to Holdings, the Borrower or such Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm'sarm’s-length transaction with a Person which that is not an Affiliate. The Company shall not, Affiliate or (2) such transaction is with a non-Guarantor Subsidiary and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving is otherwise permitted under this agreement and in the aggregate $1,000,000 ordinary course of business of Holdings, the Borrower or more with any Affiliate except for such Subsidiary, as the case may be. Notwithstanding the foregoing, Holdings, the Borrower and its Subsidiaries may (ia) pay Permitted Management Fees and other amounts payable under the making of any Restricted PaymentManagement Agreement, (iib) any transaction or series of enter into and consummate the transactions between listed on Schedule 6.10, (c) make Restricted Payments permitted pursuant to Section 6.6, (d) make intercompany Investments permitted by Section 6.8, (e) consummate the Company Merger Transactions, (f) pay reasonable and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate)customary director, officer and (iii) the payment of employee compensation (including, without limitation, amounts paid pursuant to employee bonuses) and other benefits (including, without limitation, retirement, health, stock option and other benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiaryindemnification arrangements, and (bg) upon terms which would be obtainable by make payments described under the Company caption “Use of Proceeds”, and undertake the transactions arising out of agreements existing on the Closing Date and described under the caption “Certain relationships and related party transactions”, in the Offering Memorandum or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateOffering Memoranda for the Senior Notes and the Senior Subordinated Notes, dated March 7, 2007.
Appears in 2 contracts
Sources: Credit Agreement (GNC Acquisition Holdings Inc.), Credit Agreement (General Nutrition International Inc)
Limitation on Transactions with Affiliates. The Company shall (a) Parent will not, and shall will not permit any Restricted Subsidiary of its Subsidiaries to, engage in make any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary payment to, engage in any transaction (or series sell, lease, transfer or otherwise dispose of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guaranty with, or for the benefit of, any Affiliate of Parent (each an Affiliate)“Affiliate Transaction”) except as disclosed on Schedule 4.18 annexed hereto.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.17(a) hereof:
1. transactions (x) between or among Parent and any Guarantors (other than Spinco or any Subsidiary of Spinco) and (iiiy) between or among Spinco and any Guarantors that are Subsidiaries of Spinco;
2. reasonable and customary salaries and fees paid to members of the payment Boards of Directors and officers of Parent and its Subsidiaries;
3. reasonable and customary indemnifications and insurance arrangements for the benefit of Persons that are officers or members of the Boards of Directors of Parent and its Subsidiaries on or after the date hereof, whether such Persons are current or former officers or members at the time such indemnifications or arrangements are entered into;
4. salary, bonus, employee stock option, stock repurchase, employee benefit compensation, business expense reimbursement, health care, insurance and other like benefits, severance, termination and other employment-related agreements, arrangements or plans and other compensation (and employment arrangements with directors, officers, managers and employees in the ordinary course of business, including, without limitation, amounts paid pursuant to employee benefit plans) for in connection with any employment agreements or benefits arrangements between Parent and any of its Subsidiaries with employees; provided that the personal services of officers, directors and employees of the Company entry by Parent or any of its Restricted Subsidiaries, so long as the Board of Directors Subsidiaries into any of the Company foregoing agreements, arrangements or items in good faith shall have approved excess of $300,000 in the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further aggregate that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest are not disclosed in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm Parent’s annual proxy statement filed with the TrusteeSEC shall require the written consent of Supermajority Holders;
5. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined Transactions and the transactions contemplated by the independent members Related Agreements; or
6. the exercise of the Board of Directors of the Company, Spinco Holder Call Right in their reasonable, good faith judgment (as evidenced by a Board Resolution filed accordance with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateSpinco Holder Call Right Agreement.
Appears in 1 contract
Sources: Third Lien Subordinated Exchange Agreement (NextWave Wireless Inc.)
Limitation on Transactions with Affiliates. The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid the sale, purchase, exchange or lease of assets or property or the rendering of any service) with, or for the benefit of, any Affiliate of the Parent Guarantor or any Restricted Subsidiary’s Affiliate involving aggregate consideration in excess of €25,000,000 unless:
(a) such transaction or series of transactions is on terms that, taken as a whole, are not materially less favorable to the Parent Guarantor or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable arm’s-length transaction with third parties that are not Affiliates; and
(b) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value greater than €50,000,000, the Parent Guarantor shall deliver a resolution of its board of directors (set out in an Officer’s Certificate to the Trustee) resolving that such transaction complies with clause (a) above and that the fairness of such transaction has been approved by a majority of the Disinterested Directors (or in the event there is only one Disinterested Director, by such Disinterested Director) of the Parent Guarantor’s board of directors. Notwithstanding the foregoing, the restrictions set forth in this description will not apply to:
(i) customary directors’ fees, indemnification and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit arrangements, including stock options or legal fees;
(ii) any Restricted Payment not prohibited by Section 4.08 or the making of an Investment that is a Permitted Investment;
(iii) the agreements and arrangements existing on the Issue Date and any amendment, modification or supplement thereto; provided that any such amendment, modification or supplement to the terms thereof is not more disadvantageous to the Holders and to the Parent Guarantor and the Restricted Subsidiaries, as applicable, in any material respect than the original agreement or arrangement as in effect on the Issue Date;
(iv) any payments or other transactions pursuant to employee benefit plans) for a tax sharing agreement between the personal services of officers, directors Parent Guarantor and employees of any other Person or a Restricted Subsidiary and any other Person with which the Company Parent Guarantor or any of its Restricted SubsidiariesSubsidiaries file a consolidated tax return or with which the Issuers are part of a consolidated group for tax purposes or any tax advantageous group contribution made pursuant to applicable legislation, so provided, however, that any such payments do not exceed the amounts of such tax that would have been payable by the Parent Guarantor and its Restricted Subsidiaries on a stand-alone basis and the related tax liabilities of the Parent Guarantor and its Restricted Subsidiaries are relieved thereby;
(v) transactions in the ordinary course of business with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor owns, directly or through a Restricted Subsidiary, Capital Stock in, or controls, such Person;
(vi) the issuance of securities pursuant to, or for the purpose of the funding of, employment arrangements, stock options, and stock ownership plans, as long as the Board terms thereof are or have been previously approved by the Parent Guarantor’s board of Directors directors;
(vii) the granting and performance of registration rights for the Parent Guarantor’s securities;
(viii) (A) issuances or sales of Qualified Capital Stock of the Company Parent Guarantor or Deeply Subordinated Funding and (B) any amendment, waiver or other transaction with respect to any Deeply Subordinated Funding in good faith shall have approved compliance with the other provisions of this Indenture;
(ix) pledges by the Parent Guarantor or any Restricted Subsidiary of the Capital Stock of an Unrestricted Subsidiary or a Permitted Joint Venture securing Debt owing by such Unrestricted Subsidiary or a Permitted Joint Venture;
(x) transactions with a joint venture made in the ordinary course of business;
(xi) transactions between or among the Parent Guarantor and the Restricted Subsidiaries or between or among Restricted Subsidiaries;
(xii) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services or providers of employees or other labor, in each case in the ordinary course of business and otherwise in compliance with the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be of this Indenture that are fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company Parent Guarantor or any of its the Restricted Subsidiaries) , in the reasonable determination of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the CompanyParent Guarantor or the senior management thereof, in their reasonable, good faith judgment or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;
(xiii) any transaction effected as evidenced by part of a Board Resolution filed with the TrusteePermitted Receivables Financing;
(xiv) to be (a) in the best pledges of equity interests of Unrestricted Subsidiaries; and
(xv) any employment agreement, consultancy agreement or employee benefit arrangement with any employee, consultant, officer or director of the Company Parent Guarantor or such any Restricted Subsidiary, and (b) upon terms which would be obtainable by including under any stock option, stock appreciation rights, stock incentive or similar plans, entered into in the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateordinary course of business.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company (a) Parent shall not, and shall not permit any Restricted Subsidiary to, engage directly or indirectly, in any one transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving , transfer any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any affiliate of Parent (an “Affiliate Transaction”), unless the terms thereof are no less favorable to Parent or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm’s-length dealings with a Person that is not such an affiliate; provided that the Board of Directors must approve each Affiliate Transaction that involves aggregate payments or other assets or services with a Fair Market Value in excess of $1,000,000 10.0 million. This approval must be evidenced by a board resolution that states that the Board of Directors has determined that the transaction complies with the foregoing provisions; provided, further that if Parent or more with any Affiliate except for (i) the making of any Restricted PaymentSubsidiary enters into an Affiliate Transaction that involves aggregate payments or other assets or services with a Fair Market Value in excess of $20.0 million, then prior to the consummation of such Affiliate Transaction, Parent must obtain a favorable opinion from an Independent Financial Advisor that it has determined such Affiliate Transaction to be fair, from a financial point of view, to the Holders, and deliver that opinion to the Trustee.
(iib) any transaction The provisions of clause (a) above will not prohibit the following:
(1) transactions exclusively between or series of transactions between the Company among (a) Parent and one or more of its Restricted Subsidiaries or (b) Restricted Subsidiaries; provided, in each case, that no affiliate of Parent (other than another Restricted Subsidiary) owns Capital Stock in any such Restricted Subsidiary;
(2) customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements, in each case approved by the Board of Directors;
(3) the entering into of a tax sharing agreement, or payments pursuant thereto, between two Parent and/or one or more Subsidiaries, on the one hand, and any other Person with which Parent or such Subsidiaries are required or permitted to file a consolidated tax return or with which Parent or such Subsidiaries are part of its a consolidated group for tax purposes, on the other hand, which payments by Parent and the Restricted Subsidiaries (provided that no more than 5% are not in excess of the equity interest tax liabilities that would have been payable by them on a stand-alone basis;
(4) Restricted Payments which are made in accordance with Section 4.10 and Investments constituting Permitted Investments;
(5) any transaction with an affiliate where the only consideration paid by Parent or any Restricted Subsidiary is Qualified Stock;
(6) the provision of management, financial and operational services by Parent and its Subsidiaries to affiliates of Parent in which Parent or any Restricted Subsidiaries is owned by Subsidiary has an Affiliate), Investment and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as such services; provided that the Board of Directors has determined that the provision of the Company in good faith shall have approved the terms thereof and deemed the such services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of Parent and the Company Restricted Subsidiaries;
(7) transactions between Parent or any Subsidiary and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case provided that such Restricted Subsidiary, and transactions are not otherwise prohibited by this Indenture;
(b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction 8) transactions with a Person which that is not an Affiliateaffiliate solely because Parent or any Restricted Subsidiary owns Capital Stock in such Person; provided that no affiliate of Parent (other than a Restricted Subsidiary) owns Capital Stock in such Person; or
(9) purchases and sales of raw materials or inventory in the ordinary course of business on market terms.
Appears in 1 contract
Sources: Indenture (Terra Industries Inc)
Limitation on Transactions with Affiliates. The Company shall Issuer will not, and shall will not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant the sale, purchase, exchange or lease of assets or property or the rendering of any service), with, or for the benefit of, any Affiliate of the Issuer unless such transaction or series of transactions is entered into in good faith and:
(a) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provisions of services, in each case having a value of more than $5.0 million, such transaction or series of transactions is on terms that, taken as a whole, are not materially less favorable to the Issuer or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable arm’s-length transaction with third parties that are not Affiliates;
(b) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value greater than $10.0 million, the Issuer shall deliver an Officer’s Certificate to the Trustee certifying that such transaction or series of transactions complies with clause (a) above; and
(c) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value greater than $25.0 million, the Issuer shall deliver a resolution of its board of directors (set out in an Officer’s Certificate to the Trustee) resolving that such transaction complies with clause (a) above and that the fairness of such transaction has been approved by a majority of the Issuer’s board of directors, including a majority of the Disinterested Directors (or in the event there is only one Disinterested Director, by such Disinterested Director). Notwithstanding the foregoing, the restrictions set forth in this description will not apply to:
(i) customary directors’ fees, indemnification, expense reimbursement and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, financial advisory fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit plans) for the personal services of officersarrangements, directors and employees of the Company including stock options or any of its Restricted Subsidiarieslegal fees, so long as the Board Issuer’s board of Directors of the Company in good faith shall have directors has approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees payments to be fair consideration therefor; ;
(ii) any Restricted Payments not prohibited by Section 4.08 or the making of an Investment that is a Permitted Investment;
(iii) agreements and arrangements existing on the date of this Indenture and any amendment, modification or supplement thereto, provided further that any such amendment, modification or supplement to the terms thereof is not more disadvantageous to the Holders and to the Issuer and the Restricted Subsidiaries, as applicable, in any material respect than the original agreement or arrangement as in effect on the date of this Indenture;
(iv) any payments or other transactions pursuant to a tax sharing agreement between the Issuer and any other Person with which the Issuer files a consolidated tax return or with which the Issuer is part of a consolidated group for tax purposes or any Asset Saletax advantageous group contribution made pursuant to applicable legislation;
(v) the issuance of securities pursuant to, or for the purpose of the funding of, employment arrangements, stock options, and stock ownership plans, as long as the terms thereof are or have been previously approved by the Issuer’s board of directors;
(vi) the granting and performance of registration rights for the Issuer’s securities;
(vii) transactions between or among the Issuer and the Restricted Subsidiaries or between or among Restricted Subsidiaries;
(viii) entering into and performing agreements related to a salePermitted Joint Venture (which are Affiliates solely by reason of the Issuer and/or Restricted Subsidiaries owning Capital Stock of such Permitted Joint Venture);
(ix) provision of administrative, legal and regulatory, engineering, accounting, marketing, insurance and telecommunications services to Subsidiaries of the Issuer and the allocation of the cost of such services and of overhead and corporate group costs among the Issuer and its Subsidiaries consistent with IFRS and the Issuer’s accounting policies generally applied; and
(x) any transaction or series of related transactions involving aggregate payments or the transfer of assets or other disposition (other than the provision of services in which the Issuer delivers to the Company or any of its Restricted Subsidiaries) Trustee a written opinion of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with of international standing (or, if an investment banking firm is generally not qualified to give such an opinion, by an internationally recognized appraisal firm or accounting firm) stating that the Trustee. Notwithstanding transaction or series of transactions is fair to the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company Issuer or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or Subsidiary from a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatefinancial point of view.
Appears in 1 contract
Sources: Indenture (Digicel Group LTD)
Limitation on Transactions with Affiliates. (a) The Company Issuers shall not, and shall not permit any of their Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe sale, purchase, exchange or lease of assets, property or services) for with any Affiliate (including entities in which the personal services of officers, directors and employees of the Company Issuers or any of its Restricted Subsidiaries own a minority interest) or holder of 10% or more of the Issuers' Common Stock (an "Affiliate Transaction") other than transactions existing on the date hereof and described on Schedule 4.11 hereto, or extend, renew, waive or otherwise modify the terms of any Affiliate Transaction entered into prior to the Issue Date if such extension, renewal, waiver or other modification is more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date unless (i) such Affiliate Transaction is between or among the Issuers and their Wholly-Owned Subsidiaries; or (ii) the terms of such Affiliate Transaction are fair and reasonable to the Issuers or such Restricted Subsidiary, so long as the case may be, and the terms of such Affiliate Transaction are at least as favorable as the terms which could be obtained by the Issuers or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's-length basis between unaffiliated parties. In any Affiliate Transaction involving an amount or having a value in excess of $1,000,000 which is not permitted under clause (i) above, the Issuers must obtain a resolution of the Board of Directors certifying that such Affiliate Transaction complies with clause (ii) above. In transactions with a value in excess of $3,000,000 which are not permitted under clause (i) above, the Issuers must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm.
(b) The limitations set forth in Section 4.11(a) shall not apply to (i) any Restricted Payment that is not prohibited by Section 4.09 hereof, (ii) any transaction, approved by the Board of Directors of the Company Issuers, with an officer or director of the Issuers or of any Subsidiary in good faith shall have approved his or her capacity as officer or director entered into in the terms thereof and deemed ordinary course of business, (iii) transactions permitted by Section 5.01 hereof or (iv) transactions after the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further date of this Indenture that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined are expressly contemplated by the independent members Securities Purchase Agreement and the Securityholders Agreement (including any registration rights described therein) and are not prohibited by any other provision of this Indenture or the Board of Directors of Notes; provided that the Companyaggregate management, in their reasonableadvisory, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, consulting and (b) upon terms which would be obtainable similar fees paid by the Company to ▇▇▇▇▇▇ ▇▇▇▇▇ and its Affiliates pursuant to the Securities Purchase Agreement or otherwise shall not exceed (y) $1,000,000 during any fiscal year less (z) the amount of any distributions made by the Company during such fiscal year pursuant to clause (vi) of the second paragraph of Section 4.09, and provided, further, that any such fees may accrue but shall not be paid by the Company at any time after the occurrence and during the continuance of a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateDefault or Event of Default.
Appears in 1 contract
Sources: Indenture (Petersen Holdings LLC)
Limitation on Transactions with Affiliates. The Company shall Operating Partnership will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, enter into, renew or extend any transaction (including, without limitations, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with any Affiliate of the Operating Partnership or any of its Restricted Subsidiaries, in each case involving consideration in excess of $10 million (in one transaction or a series of related transactions), except upon fair and reasonable terms which would be any no less favorable than those obtainable by to the Company Operating Partnership or a such Restricted Subsidiary than could be obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefore, in a comparable arm'sarm’s-length transaction with a Person which that is not such an Affiliate. The Company shall notforegoing limitation does not limit, and shall not permit any Restricted Subsidiary apply to, engage in any transaction :
(or series 1) transactions for which the Operating Partnership delivers to the Trustee a Board Resolution of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for Operating Partnership approved by a majority of the independent members of the Board of Directors;
(i) the making of any Restricted Payment, (ii2) any transaction or series of transactions between solely among the Company Company, the Operating Partnership and one or more any of its Restricted Subsidiaries or solely among Restricted Subsidiaries;
(3) any payments or other transactions pursuant to any tax-sharing agreement between two the Operating Partnership and the Company or other Person with which the Operating Partnership files a consolidated tax return or with which the Operating Partnership is part of a consolidated group for tax purposes;
(4) any Restricted Payments or Permitted Investments not prohibited by Section 4.05;
(5) transactions pursuant to agreements or arrangements in effect on the Issue Date or any amendment, modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not more of its disadvantageous to the Operating Partnership and the Restricted Subsidiaries than the original agreement or arrangement in existence on the Issue Date;
(provided that no more than 5% of 6) director’s fees and any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the equity interest in Operating Partnership or any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of with officers, directors and employees of the Company Company, the Operating Partnership or its Restricted Subsidiaries that are Affiliates of the Operating Partnership or its Restricted Subsidiaries and the payment of compensation to such officers, directors and employees (including amounts paid or securities issued pursuant to employee benefit plans, employee stock option or similar plans), or loans and advances to any officer, director or employee, so long as such agreement has been approved by the Board of Directors;
(7) commission, payroll, travel and similar advances or loans (including payment or cancellation thereof) to officers and employees of the Company, the Operating Partnership or any of its Restricted Subsidiaries, so long as the Board ;
(8) sales of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition Equity Interests (other than to the Company or any of its Restricted SubsidiariesDisqualified Stock) of the Operating Partnership to Affiliates;
(9) any transaction with any Person who is not an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer Affiliate immediately before the consummation of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by that becomes an Affiliate as a result of such transaction;
(10) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate transaction solely because the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company Operating Partnership or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity; or
(11) any merger, consolidation or reorganization of the Operating Partnership or a comparable arm's-length transaction Restricted Subsidiary (otherwise permitted by the Indenture) with or into a Person which is not an AffiliateRestricted Subsidiary solely for the purpose of changing the domicile of the Operating Partnership or a Restricted Subsidiary.
Appears in 1 contract
Sources: First Supplemental Indenture (Dupont Fabros Technology, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any business, enter into or permit to exist any transaction (including the purchase, conveyance, disposition, sale, lease or exchange of any property or the rendering of any service) with any Affiliate upon terms which would be any less favorable than those obtainable by of the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not (an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series "Affiliate Transaction") unless the terms of related transactions) involving in the aggregate $1,000,000 or more with any such Affiliate except for Transaction are (i) the making of any Restricted Paymentset forth in writing, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests interest of the Company or such Restricted Subsidiary, as the case may be, (iii) as favorable to the Company or such Restricted Subsidiary, as the case may be, as those that could be obtained at the time of such transaction for a similar transaction in arm's-length dealings with a Person who is not such an Affiliate, and (iv) with respect to an Affiliate Transaction involving aggregate payments or value of $1 million or greater, the Independent Directors have determined in good faith that the criteria set forth in clauses (ii) and (iii) are satisfied and have approved the relevant Affiliate Transaction, such approval to be evidenced by a Board Resolution. The determinations pursuant to clauses (ii) and (iii) above shall not require the Board of Directors or the Independent Directors to obtain independent expert opinions unless, in the sole judgment of the Board of Directors or the Independent Directors, the Board of Directors or the Independent Directors decide to obtain such an opinion.
(b) upon terms which would The provisions of Section 4.07(a) shall not prohibit (i) any Restricted Payment permitted to be obtainable paid pursuant to Section 4.04, (ii) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors, (iii) loans or advances to employees in the ordinary course of business in accordance with past practices of the Company, (iv) the payment of reasonable fees to directors of the Company and its Restricted Subsidiaries who are not employees of the Company or its Restricted Subsidiaries or (v) any transaction between the Company and a Restricted Wholly Owned Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateor between Wholly Owned Subsidiaries.
Appears in 1 contract
Sources: Indenture (Rio Hotel & Casino Inc)
Limitation on Transactions with Affiliates. The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe sale, purchase, exchange or lease of assets, property or services) for the personal services of officers, directors and employees of with any Affiliate (including entities in which the Company or any of its Restricted SubsidiariesSubsidiaries own a minority interest) or holder of 10% or more of the Company's Common Stock (an "Affiliate Transaction") or extend, so long renew, waive or otherwise modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Wholly-Owned Subsidiaries or between or among Wholly-Owned Subsidiaries of the Company; or (ii) the terms of such Affiliate Transaction are fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and the terms of such Affiliate Transaction are commercially reasonable and at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an 62 -54- arm's-length basis between unaffiliated parties. In any Affiliate Transaction involving an amount or having a value in excess of $1 million which is not permitted under clause (i) above, the Company must obtain a resolution of the Board of Directors certifying that such Affiliate Transaction complies with clause (ii) above. In transactions with a value in excess of $3 million which are not permitted under clause (i) above, the Company must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm, provided, that, in the case of loans from the Company to an Affiliate or loans from an Affiliate to the Company, no such fairness opinion shall be required if the Company has obtained a resolution of the Company in good faith shall have Board of Directors certifying that such Affiliate Transaction complies with clause (ii) above. The foregoing provisions will not apply to (i) any Restricted Payment that is not prohibited by Section 4.09 hereof, (ii) any transaction, approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests an officer or director of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted of any Subsidiary in a comparable arm's-length his or her capacity as officer or director entered into in the ordinary course of business, or (iii) any transaction entered into in the ordinary course of business, consistent with a Person which is not an Affiliatepast practice, with any of UpRight Ireland, Instant Deutschand or Instant Australia.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe sale, purchase, exchange or lease of assets, property or services) for the personal services with any Affiliate or holder of officers, directors and employees 10% or more of the Company's Common Stock (an "Affiliate Transaction") or extend, renew, waive or otherwise modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company or any of and its Wholly-Owned Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved ; or (ii) the terms thereof of such Affiliate Transaction is fair and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than reasonable to the Company or any of its such Restricted Subsidiaries) , as the case may be, and the terms of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value Affiliate Transaction are at least as determined favorable as the terms which could be obtained by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and as the case may be, in a comparable transaction made on an arm's-length basis between unaffiliated parties. Any Affiliate Transaction involving an amount or having a value in excess of $1.0 million which is not permitted under clause (i) above shall have been approved by a majority of the Company's Board of Directors. In transactions with a value in excess of $5.0 million which are not permitted under clause (i) above, the Company must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm.
(b) upon terms which would be obtainable The foregoing provisions will not apply to (i) any Restricted Payment that is not prohibited by the provisions described under Section 4.08 contained herein, (ii) payments to Lancer under the Tax Sharing Agreement, (iii) payments to participants in the Equity Participation Plan in an amount not exceeding $1.32 million in any fiscal year and $5.28 million in the aggregate, (iv) reasonable and customary regular fees to directors of the Company who are not employees of the Company, (v) loans or advances to officers of the Company and its Restricted Subsidiaries for bona fide business purposes of the Company in the ordinary course of business, (vi) royalty payments by the Company to T-H Licensing pursuant to that certain letter agreement dated as of December 29, 1989 between the Company and T-H Licensing (as such agreement may be amended from time to time pursuant to its terms), provided that any such payment (less any amounts permitted to be retained by T-H Licensing pursuant to the Credit Agreement) is returned to the Company as a loan within sixty days after receipt of such payment by T-H Licensing, (vii) payments or a distributions to participants in the New Equity Incentive Plan pursuant to the terms thereof, and (viii) payments of the Company's allocated portion of the Lancer consolidated group's corporate expenses and fees to Lancer or any Affiliate of Lancer incurred in connection with Lancer's or any Affiliate of Lancer's performance of management consulting, monitoring and financial advisory services with respect to the Company and any Restricted Subsidiary in a comparable arm's-length transaction with a Person which is an amount not an Affiliateto exceed $2.0 million in any fiscal year excluding amounts paid prior to the Issue Date); provided, however, that notwithstanding anything to the contrary contained in this Indenture, the Company shall not be permitted to pay to Lancer or any Affiliate of Lancer any amount for such services in excess of the amount set forth in this clause (viii).
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant the sale, purchase, exchange or lease of assets or property or the rendering of any service) with, or for the benefit of, any Affiliate of the Parent Guarantor or any Restricted Subsidiary’s Affiliate unless such transaction or series of transactions is entered into in good faith (and, in the case of such a transaction or series of transactions having a value greater than €20,000,000, in writing) and:
(i) such transaction or series of transactions is on terms that, taken as a whole, are not materially less favorable to the Parent Guarantor or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable arm’s-length transaction with third parties that are not Affiliates;
(ii) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value greater than €20,000,000, the Parent Guarantor shall deliver a resolution of its board of directors (set out in an Officer’s Certificate to the Administrative Agent) resolving that such transaction complies with clause (i) above and that the fairness of such transaction has been approved by a majority of the Disinterested Directors (or in the event there is only one Disinterested Director, by such Disinterested Director) of the Parent Guarantor’s board of directors; and
(iii) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services, in each case having a value greater than €50,000,000, the Parent Guarantor shall deliver to the Administrative Agent a written opinion of an accounting, appraisal, investment banking or advisory firm of international standing stating that the transaction or series of transactions is on terms not less favorable to the Parent Guarantor or such Restricted Subsidiary than might have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
(b) Notwithstanding the foregoing, the restrictions in clause (a) of this Section 8.5 shall not apply to:
(i) customary directors’ fees, indemnification and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit plans) for the personal services of officersarrangements, directors and employees of the Company including stock options or any of its Restricted Subsidiarieslegal fees, so long as the Board Parent Guarantor’s board of Directors of the Company in good faith shall have directors has approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees payments to be fair consideration therefor; and provided further that for the restrictions set forth in this description shall apply to any Asset Sale, or a sale, transfer fees paid in respect of engineering or other disposition similar services to any Unrestricted Subsidiary or any employee thereof;
(ii) any Restricted Payments not prohibited by Section 8.3 or the making of an Investment that is a Permitted Investment;
(iii) the agreements and arrangements existing on the Closing Date and any amendment, modification or supplement thereto; provided that any such amendment, modification or supplement to the terms thereof is not more disadvantageous to the Lenders and to the Parent Guarantor and the Restricted Subsidiaries, as applicable, in any material respect than the original agreement or arrangement as in effect on the Closing Date and; provided, further, that such amendment or modification is (x) on a basis substantially similar to that which would be conducted in an arm’s-length transaction with third parties who are not Affiliates and (y) in the case of any transaction having a Fair Market Value of greater than €20,000,000, approved by the Parent Guarantor’s board of directors (including a majority of the Disinterested Directors);
(iv) transactions in the ordinary course of business with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor owns, directly or through a Restricted Subsidiary, Capital Stock in, or controls, such Person;
(v) the issuance of securities pursuant to, or for the purpose of the funding of, employment arrangements, stock options, and stock ownership plans, as long as the terms thereof are or have been previously approved by the Parent Guarantor’s board of directors;
(vi) the granting and performance of registration rights for the Parent Guarantor’s securities;
(vii) (A) issuances or sales of Qualified Capital Stock of the Parent Guarantor or Deeply Subordinated Funding and (B) any amendment, waiver or other transaction with respect to any Deeply Subordinated Funding in compliance with the other provisions of this Agreement;
(viii) pledges by the Parent Guarantor or any Restricted Subsidiary of the Capital Stock of an Unrestricted Subsidiary or Permitted Joint Venture securing Debt owing by such Unrestricted Subsidiary or Permitted Joint Venture;
(ix) transactions between any joint venture and a Restricted Subsidiary made in the ordinary course of business and consistent with the Restricted Subsidiary’s past practices; provided that the partner in such joint venture is not an Affiliate of the Parent Guarantor or the applicable Restricted Subsidiary;
(x) transactions between or among the Parent Guarantor and the Restricted Subsidiaries or between or among Restricted Subsidiaries;
(xi) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services or providers of employees or other labor, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement that are fair to the Company Parent Guarantor or any of its the Restricted Subsidiaries) , in the reasonable determination of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the CompanyParent Guarantor or the senior management thereof, in their reasonableor are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;
(xii) any transactions which the Parent Guarantor or any of its Restricted Subsidiaries delivers to the Administrative Agent a letter from an accounting, good faith judgment (as evidenced by a Board Resolution filed appraisal or investment banking firm of international standing, or other recognized independent expert of international standing with experience appraising the Trustee) to be (a) in the best interests terms and conditions of the Company type of transaction or such Restricted Subsidiaryseries of related transactions for which an opinion is required, and stating that the transaction or series of related transactions is (bx) upon fair from a financial point of view taking into account all relevant circumstances or (y) on terms which would be obtainable by the Company or a Restricted Subsidiary not less favorable than might have been obtained in a comparable arm'stransaction at such time on an arm’s-length transaction with basis from a Person which who is not an Affiliate;
(xiii) pledges of equity interests of Unrestricted Subsidiaries; and
(xiv) any employment agreement, consultancy agreement or employee benefit arrangement with any employee, consultant, officer or director of the Parent Guarantor or any Restricted Subsidiary, including under any stock option, stock appreciation rights, stock incentive or similar plans, entered into in the ordinary course of business.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any Restricted Subsidiary of the Company to, engage in directly or indirectly, enter into any transaction (including without limitation the purchase, sale, lease or exchange of any property or the rendering of any service) with any a Person that, immediately prior to such transaction, was an Affiliate upon (an "Affiliate Transaction"), unless such transaction is on terms which would be any no less favorable than those obtainable by to the Company or a such Restricted Subsidiary than those that could be obtained in a comparable arm's-arms' length transaction with a Person which an entity that is not an Affiliate; provided that continued performance under agreements as in effect on the Original 9-5/8% Notes Issuance Date and described in the Offering Memorandum, or consummation, on the terms described in the Offering Memorandum, of transactions described therein that are not consummated prior to the Original 9-5/8% Notes Issuance Date (and renewals and extensions of such agreements and transactions on terms not materially less favorable to the Holders than the terms of such original agreements and transactions), shall not be subject to such limitation. The In addition, the Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries of the Company to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for enter into (i) an Affiliate Transaction involving or having an expected value of more than $2 million unless such transaction shall have been approved in good faith by resolution of the making Board of any Restricted Payment, Directors and such resolution provides that such Affiliate Transaction complies with the requirements of this Section 4.11 or (ii) any an Affiliate Transaction involving or having an expected value of more than $15 million, unless the Company has received an opinion of a nationally recognized independent investment banking firm, accounting firm, appraisal firm or other experts of nationally recognized standing if, in each case, such firm is regularly engaged to render opinions of such type, to the effect that the transaction or series is fair to the Company (or, if the Company is not a party to such Affiliate Transaction, then to such Restricted Subsidiary) from a financial point of view. Notwithstanding anything to the contrary contained in this Indenture, the foregoing provisions shall not apply to (i) transactions between the Company and one or more a Wholly Owned Subsidiary of its the Company that is a Restricted Subsidiaries Subsidiary or between two or more of its Restricted Wholly Owned Subsidiaries (provided that no more than 5% of the equity interest in Company that are Restricted Subsidiaries, (ii) payments required to be made to the Company by Cinemark International or by any Subsidiary of its Restricted Subsidiaries is owned by an Affiliate)Cinemark International under the Cinemark International Management Agreement or under a Subsidiary management agreement, and as the case may be, (iii) the payment of compensation (including, without limitation, amounts paid payments pursuant to employee benefit plansany tax sharing agreement or arrangement among the Company and its Subsidiaries, (iv) for the personal services of officerstransactions with any current or former employee, directors and employees officer or director of the Company or any of its Restricted Subsidiaries, so long as Subsidiaries pursuant to reasonable employee benefit plans or compensation arrangements or agreements entered into in the Board ordinary course of Directors of business on or prior to the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset SaleOriginal 9-5/8% Notes Issuance Date, or a sale, transfer amended or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed created thereafter with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members approval of the Board of Directors of the CompanyDirectors, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed v) transactions with the Trustee) to be (a) in the best interests any employee of the Company or such Restricted Subsidiary, and (b) upon terms pursuant to which would be obtainable by the Company purchases or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate.otherwise acquires Capital Stock of the Company from such
Appears in 1 contract
Sources: Indenture (Cinemark Usa Inc /Tx)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including any purchase, sale, lease or exchange of Property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than the Borrower, any Restricted Subsidiary to, engage in or any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or Person that becomes a Restricted Subsidiary as a result of such transaction) unless such transaction is otherwise permitted under this Agreement and is on fair and reasonable terms no less favorable to the Borrower and its Restricted Subsidiaries than would be obtained in a comparable arm's-arm’s length transaction with a Person which that is not an Affiliate. The Company shall notNotwithstanding the foregoing, the Borrower and shall not permit any its Restricted Subsidiary toSubsidiaries may (a) pay Permitted Management Fees and other amounts payable (including all expense reimbursement and indemnification claims) under the Management Agreement, engage (b) enter into and consummate the transactions listed on Schedule 6.10, (c) make Restricted Payments permitted pursuant to Section 6.6, (d)(i) make Investments in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, Unrestricted Subsidiaries permitted by Section 6.7 and (ii) make Investments permitted by Section 6.7(a), (d), (h), (s) or (t), (e) consummate the Transactions (including the issuance of Capital Stock to any transaction officer, director, employee or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% consultant of the equity interest in Borrower or any of its Restricted Subsidiaries is owned by an Affiliateor any direct or indirect parent of the Borrower) and transactions related to or necessary or contemplated in connection with any IPO (whether or not consummated), and, in each case, pay fees and expenses related to thereto, (iiif) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of enter into employment and severance arrangements with officers, directors and employees of Holdings (or any direct or indirect parent company of Holdings), the Company Borrower and the Restricted Subsidiaries and, to the extent relating to services performed for Holdings, the Borrower and the Restricted Subsidiaries (as determined in good faith by the senior management of the relevant Person), pay director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification and expense reimbursement arrangements; provided that any purchase of Capital Stock of Holdings (or any direct or indirect holding company of Holdings) in connection with the foregoing shall be subject to Section 6.6, (g) make customary payments to the Sponsor for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions or divestitures), which payments are approved by the majority of the members of the board of directors or a majority of the disinterested members of the board of directors of Holdings or the Borrower in good faith, (h) issue or transfer Capital Stock (other than Disqualified Capital Stock) of Holdings (or any direct or indirect parent company of Holdings) to any direct or indirect parent company of Holdings or to any Permitted Investor or to any former, current or future director, manager, officer, employee or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any of its Subsidiaries or any direct or indirect parent company thereof to the extent otherwise permitted by this Agreement, (i) make payments to or receive payments from, and enter into and consummate transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by the Borrower and the Restricted Subsidiaries in such joint venture) in the ordinary course of business to the extent otherwise permitted hereunder, (j) pay reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to holders of Capital Stock of Holdings or any direct or indirect parent company thereof pursuant to any stockholders agreement or registration and participation rights agreement in effect on the Closing Date, (k) transactions between the Borrower or any Restricted Subsidiary and any Person other than an Unrestricted Subsidiary which would constitute a transaction with an Affiliate solely because a director of such Person is also a director of the Borrower or any direct or indirect parent of the Borrower; provided, however, that such director abstains from voting as a director of the Borrower or such direct or indirect parent, as the case may be, on any matter involving such other Person, (l) make or accept any contribution to the capital of the Borrower or other Loan Party and if the Person making such contribution is not a Loan Party, any other Restricted Subsidiary, (m) the non-exclusive licensing of Intellectual Property in the ordinary course of business to permit the commercial exploitation of Intellectual Property between or among Affiliates and Subsidiaries of the Borrower; and (n) transactions in which Holdings, the Borrower or any of the Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Salecase may be, or obtains a saleletter from an independent financial advisory, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking or appraisal firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any stating that such transaction which is determined by fair to Holding the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company Borrower or such Restricted Subsidiary, and (b) upon terms which would be obtainable by Subsidiary from a financial point of view or meets the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliaterequirements of the first sentence of this Section 6.9.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Continental Building Products, Inc.)
Limitation on Transactions with Affiliates. (a) The Company shall Guarantor will not, and shall will not permit any Restricted Subsidiary to, engage in directly or indirectly, enter into, renew or extend any transaction or arrangement including the purchase, sale, lease or exchange of property or assets, or the rendering of any service with any Affiliate of the Guarantor or any Restricted Subsidiary (a “Related Party Transaction”), except upon terms which would be any no less favorable than those obtainable by to the Company Guarantor or a the Restricted Subsidiary than could be obtained in a comparable arm'sarm’s-length transaction with a Person which that is not an Affiliate. The Company shall notAffiliate of the Guarantor.
(b) In any Related Party Transaction or series of Related Party Transactions with an aggregate value in excess of U.S.$50.0 million (or the equivalent thereof at the time of determination), and shall not permit any Restricted Subsidiary to, engage in any the Guarantor must first deliver to the Trustee an Officers’ Certificate to the effect that such transaction (or series of related transactionstransactions are on terms no less favorable to the Guarantor or such Restricted Subsidiary than could be obtained in a comparable arm’s length transaction and is otherwise compliant with the terms of this Indenture.
(c) involving in the aggregate $1,000,000 or more with any Affiliate except for The foregoing paragraphs of this Section 4.14 do not apply to:
(i) any transaction between the making of Guarantor and any Restricted Payment, Subsidiary or between Restricted Subsidiaries and the Guarantor;
(ii) the payment of reasonable and customary regular fees to directors of the Guarantor who are not employees of the Guarantor;
(iii) any transaction issuance or series sale of Equity Interests (other than Disqualified Stock);
(iv) transactions between or payments pursuant to any employee, officer or director compensation or benefit plans, customary indemnifications or arrangements entered into in the Company ordinary course of business;
(v) transactions pursuant to agreements in effect on the Issue Date and one described in the Offering Memorandum, as amended, modified or more of replaced from time to time so long as the amended, modified or new agreements, taken as a whole, are no less favorable to the Guarantor and its Restricted Subsidiaries than those in effect on the date of this Indenture;
(vi) any Sale Leaseback Transaction otherwise permitted under Section 4.10 if such transaction is on market terms;
(vii) any advance, loan or between two other extension of credit (or more of its Restricted Subsidiaries (provided that no more than 5% Guarantee thereof) in connection with the use of the equity interest in proceeds of the Notes (including any Additional Notes) as well as additional loans outstanding from the Guarantor or any of its Restricted Subsidiaries to an Affiliate to the extent that any such advance, loan or other extension of credit (i) has a Stated Maturity that is owned by an Affiliate), prior to the Stated Maturity of the Notes and (iiiii) is on market terms;
(viii) (A) transactions with customers, clients, distributors, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and on market terms, or (B) transactions with joint ventures or other similar arrangements entered into in the ordinary course of business, on market terms and consistent with past practice or industry norms;
(ix) the payment Joint Venture and any transactions or provision of compensation services related thereto;
(including, without limitation, amounts paid pursuant x) the provision of administrative services to employee benefit plans) for any joint venture or Unrestricted Subsidiary on substantially the personal services of officers, directors and employees of the Company same terms provided to or any of its by Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for ;
(xi) any Asset Sale, or a sale, transfer conveyance, transfer, distribution or other disposition of the Capital Stock (other than and the proceeds thereof) of Cosan Lubes Investments Limited or Cosan Lubrificantes e Especialidades S.A. (or any entity whose sole assets consist of all or a portion of the assets or business of Cosan Lubes Investments Limited or Cosan Lubrificantes e Especialidades S.A.) (whether by sale, merger, spin-off, split-off or otherwise) to the Company shareholders of Cosan S.A. (the “Lubricant Disposal”); and
(xii) any sale, conveyance, transfer, distribution or other disposition of the Capital Stock (and the proceeds thereof) of Radar Propriedades Agrícolas S.A., Radar II Propriedades Agrícolas S.A., Tellus Brasil Participações S.A., Janus Brasil Participações S.A., Gamiovapar Empreendimentos e Participações S.A., Duguetiapar Empreendimentos e Participações S.A., Nova Santa ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ S.A., Nova Agrícola ▇▇▇▇▇ ▇▇▇▇ S.A., Nova Amaralina S.A. Propriedades Agrícolas, Terras da ▇▇▇▇▇ ▇▇▇▇ S.A., ▇▇▇▇▇▇▇▇▇▇▇ Propriedades Agrícolas S.A., Manacá Propriedades Agrícolas S.A. and Paineira Propriedades Agrícolas S.A. (or any entity whose sole assets consist of its Restricted Subsidiaries) of an interest in all or a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members portion of the Board of Directors assets or business of the Companyentities mentioned herein) (whether by sale, in their reasonablemerger, good faith judgment (as evidenced by a Board Resolution filed with the Trusteespin-off, split-off or otherwise) to be the shareholders of Cosan S.A. and its other shareholders (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate“Radar Disposal”).
Appears in 1 contract
Sources: Indenture (Cosan S.A.)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including any Restricted Subsidiary topurchase, engage in sale, lease or exchange of property or the rendering of any transaction service, with any Affiliate unless such transaction is (a) otherwise permitted under this Agreement, and (b) upon terms which would be any no less favorable to the Parent Borrower or such Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-arm’s length transaction with a Person which is not an Affiliate. The Company ; provided that nothing contained in this subsection 8.11 shall notbe deemed to prohibit:
(i) the Parent Borrower or any of its Subsidiaries from entering into or performing any consulting, and shall management or employment agreements or other compensation arrangements with a director, officer or employee of the Parent Borrower or any of its Subsidiaries that provides for annual aggregate base compensation not permit in excess of $2,000,000 for each such director, officer or employee;
(ii) the Parent Borrower or any Restricted Subsidiary to, engage in of its Subsidiaries from entering into or performing an agreement with any transaction (Sponsor or series any Affiliate of related transactions) involving any Sponsor for the rendering of management consulting or financial advisory services for compensation not to exceed in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and 7,500,000 per year plus reasonable out-of-pocket expenses;
(iii) the payment of compensation transaction expenses in connection with this Agreement;
(including, without limitation, amounts paid pursuant to employee benefit plansiv) for the personal services of officers, directors and employees of the Company Parent Borrower or any of its Restricted SubsidiariesSubsidiaries from entering into, so long as the Board making payments pursuant to and otherwise performing an indemnification and contribution agreement in favor of Directors any Permitted Holder and each person who is or becomes a director, officer, agent or employee of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company Parent Borrower or any of its Restricted Subsidiaries, in respect of liabilities (A) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of an securities by any Parent Entity (provided that, if such Parent Entity shall own any material assets other than the Capital Stock of CCMGC or another Parent Entity, or other assets relating to the ownership interest of such Parent Entity in a Restricted Investment, involving an amount greater than $25,000,000CCMGC or another Parent Entity, such Asset Sale or transfer of interest in a Restricted Investment is for fair value liabilities shall be limited to the reasonable and proportional share, as determined by an opinion the Parent Borrower in its reasonable discretion, of such liabilities relating or allocable to the ownership interest of such Parent Entity in CCMGC or another Parent Entity and such other related assets) or CCMGC or any of its Subsidiaries, (B) incurred to third parties for any action or failure to act of the Parent Borrower or any of its Subsidiaries, predecessors or successors, (C) arising out of the performance by any Affiliate of any Sponsor of management consulting or financial advisory services provided to the Parent Borrower or any of its Subsidiaries, (D) arising out of the fact that any indemnitee was or is a director, officer, agent or employee of the Parent Borrower or any of its Subsidiaries, or is or was serving at the request of any such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or enterprise or (E) to the fullest extent permitted by Delaware or other applicable state law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of the Parent Borrower or any of its Subsidiaries;
(v) the Parent Borrower or any of its Subsidiaries from performing any agreements or commitments with or to any Affiliate existing on the Closing Date and described on Schedule 8.11(v);
(vi) any transaction permitted under subsection 8.4(b), 8.4(d), 8.4(f), 8.5, 8.7, 8.9(e), 8.9(f) or 8.9(n), any transaction with a Wholly Owned Subsidiary of the Parent Borrower and any transaction with a Special Purpose Entity;
(vii) the Parent Borrower or any of its Subsidiaries from performing its obligations under the Tax Sharing Agreement;
(viii) the Parent Borrower from paying to any Sponsor or any of their respective Affiliates fees of up to $75,000,000 in the aggregate, plus out-of-pocket expenses, in connection with the Transactions; and
(ix) the Transactions and all transactions relating thereto. For purposes of this subsection 8.11, (A) any transaction with any Affiliate shall be deemed to have satisfied the standard set forth in clause (b) of the first sentence hereof if (i) such transaction is approved by a majority of the Disinterested Directors of the board of directors of any Parent Entity, CCMGC, the Parent Borrower or such Subsidiary, or (ii) in the event that at the time of any such transaction, there are no Disinterested Directors serving on the board of directors of any Parent Entity, CCMGC, the Parent Borrower or such Subsidiary, such transaction shall be approved by a nationally recognized investment banking firm filed expert with expertise in appraising the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members terms and conditions of the Board type of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiarytransaction for which approval is required, and (bB) upon terms which would be obtainable by ”Disinterested Director” shall mean, with respect to any Person and transaction, a member of the Company board of directors of such Person who does not have any material direct or a Restricted Subsidiary indirect financial interest in a comparable arm's-length transaction or with a Person which is not an Affiliaterespect to such transaction.
Appears in 1 contract
Sources: Credit Agreement (Hertz Corp)
Limitation on Transactions with Affiliates. The Company Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant the sale, purchase, exchange or lease of assets or property or the rendering of any service) with, or for the benefit of, any Affiliate of the Parent Guarantor or any Restricted Subsidiary’s Affiliate unless such transaction or series of transactions is entered into in good faith (and, in the case of such a transaction or series of transactions having a value greater than €20,000,000, in writing) and:
(a) such transaction or series of transactions is on terms that, taken as a whole, are not materially less favorable to the Parent Guarantor or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable arm’s-length transaction with third parties that are not Affiliates;
(b) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or provision of services, in each case having a value greater than €20,000,000, the Parent Guarantor shall deliver a resolution of its board of directors (set out in an Officer’s Certificate to the Trustee) resolving that such transaction complies with clause (a) above and that the fairness of such transaction has been approved by a majority of the Disinterested Directors (or in the event there is only one Disinterested Director, by such Disinterested Director) of the Parent Guarantor’s board of directors; and
(c) with respect to any transaction or series of related transactions involving aggregate payments or the transfer of assets or the provision of services, in each case having a value greater than €50,000,000, the Parent Guarantor shall deliver to the Trustee a written opinion of an accounting, appraisal, investment banking or advisory firm of international standing stating that the transaction or series of transactions is on terms not less favorable to the Parent Guarantor or such Restricted Subsidiary than might have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate. Notwithstanding the foregoing, the restrictions set forth in this description will not apply to:
(i) customary directors’ fees, indemnification and similar arrangements (including the payment of directors’ and officers’ insurance premiums), consulting fees, employee salaries, bonuses, employment agreements and arrangements, compensation or employee benefit plans) for the personal services of officersarrangements, directors and employees of the Company including stock options or any of its Restricted Subsidiarieslegal fees, so long as the Board Parent Guarantor’s board of Directors of the Company in good faith shall have directors has approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees payments to be fair consideration therefor; and provided further that for the restrictions set forth in this description shall apply to any Asset Sale, or a sale, transfer fees paid in respect of engineering or other disposition similar services to any Unrestricted Subsidiary or any employee thereof;
(ii) any Restricted Payments not prohibited by Section 4.08 or the making of an Investment that is a Permitted Investment;
(iii) the agreements and arrangements existing on the Issue Date and any amendment, modification or supplement thereto; provided that any such amendment, modification or supplement to the terms thereof is not more disadvantageous to the Holders and to the Parent Guarantor and the Restricted Subsidiaries, as applicable, in any material respect than the original agreement or arrangement as in effect on the Issue Date and provided, further, that such amendment or modification is (x) on a basis substantially similar to that which would be conducted in an arm’s-length transaction with third parties who are not Affiliates and (y) in the case of any transaction having a Fair Market Value of greater than €20,000,000, approved by the Parent Guarantor’s board of directors (including a majority of the Disinterested Directors);
(iv) transactions in the ordinary course of business with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Parent Guarantor solely because the Parent Guarantor owns, directly or through a Restricted Subsidiary, Capital Stock in, or controls, such Person;
(v) the issuance of securities pursuant to, or for the purpose of the funding of, employment arrangements, stock options, and stock ownership plans, as long as the terms thereof are or have been previously approved by the Parent Guarantor’s board of directors;
(vi) the granting and performance of registration rights for the Parent Guarantor’s securities;
(vii) (A) issuances or sales of Qualified Capital Stock of the Parent Guarantor or Deeply Subordinated Funding and (B) any amendment, waiver or other transaction with respect to any Deeply Subordinated Funding in compliance with the other provisions of this Indenture;
(viii) pledges by the Parent Guarantor or any Restricted Subsidiary of the Capital Stock of an Unrestricted Subsidiary or Permitted Joint Venture securing Debt owing by such Unrestricted Subsidiary or Permitted Joint Venture;
(ix) transactions between any joint venture and a Restricted Subsidiary made in the ordinary course of business and consistent with the Restricted Subsidiary’s past practices; provided that the partner in such joint venture is not an Affiliate of the Parent Guarantor or the applicable Restricted Subsidiary;
(x) transactions between or among the Parent Guarantor and the Restricted Subsidiaries or between or among Restricted Subsidiaries;
(xi) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services or providers of employees or other labor, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Company Parent Guarantor or any of its the Restricted Subsidiaries) , in the reasonable determination of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the CompanyParent Guarantor or the senior management thereof, in their reasonableor are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated Person;
(xii) any transactions which the Parent Guarantor or any of its Restricted Subsidiaries delivers to the Trustee a letter from an accounting, good faith judgment (as evidenced by a Board Resolution filed appraisal or investment banking firm of international standing, or other recognized independent expert of international standing with experience appraising the Trustee) to be (a) in the best interests terms and conditions of the Company type of transaction or such Restricted Subsidiaryseries of related transactions for which an opinion is required, and stating that the transaction or series of related transactions is (bx) upon fair from a financial point of view taking into account all relevant circumstances or (y) on terms which would be obtainable by the Company or a Restricted Subsidiary not less favorable than might have been obtained in a comparable arm'stransaction at such time on an arm’s-length transaction with basis from a Person which who is not an Affiliate;
(xiii) pledges of equity interests of Unrestricted Subsidiaries; and
(xiv) any employment agreement, consultancy agreement or employee benefit arrangement with any employee, consultant, officer or director of the Parent Guarantor or any Restricted Subsidiary, including under any stock option, stock appreciation rights, stock incentive or similar plans, entered into in the ordinary course of business.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company (a) Except as otherwise permitted under this Indenture, the Issuer shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries to, make any Investment, loan, advance, guarantee or between two capital contribution to, or more for the benefit of, or sell, lease or otherwise transfer or dispose of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate)properties or assets to, and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) or for the personal services of officersbenefit of, directors and employees or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company Issuer or any of its Restricted Subsidiaries, so long unless:
(1) such transaction or series of transactions is in the best interests of the Issuer or such Restricted Subsidiary based on all relevant facts and circumstances;
(2) such transaction or series of transactions is fair to the Issuer or such Restricted Subsidiary and on terms that are no less favorable to the Issuer or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable transaction on an arm's-length basis from a Person that is not an Affiliate of the Issuer or any of its Restricted Subsidiaries; and
(3) (a) with respect to a transaction or series of transactions involving aggregate payments in excess of $5 million, the Board of Directors and a majority of the Disinterested Directors shall approve such transaction or series of transactions by a Board Resolution evidencing their determination that such transaction or series of transactions complies with clauses (1) and (2) above, and (b) with respect to a transaction or series of transactions involving aggregate payments equal to or greater than $15 million, the Issuer receives a written opinion from a nationally recognized investment bank or valuation firm or, with respect to a transaction requiring the valuation of real property, a nationally recognized real estate appraisal firm, that such transaction or series of transactions is fair to the Issuer or such Restricted Subsidiary from a financial point of view.
(a) shall prohibit:
(1) any payment of money or issuance of securities by the Issuer or any Restricted Subsidiary of the Issuer pursuant to employment agreements or arrangements and employee benefit plans, including reimbursement or advancement of out-of-pocket expenses and directors' and officers' liability insurance;
(2) reasonable and customary payments and other benefits (including indemnification) provided to directors for service on the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company Issuer or any of its Restricted SubsidiariesSubsidiaries and reimbursement of expenses related thereto;
(3) agreements and instruments to which ▇▇▇▇▇ & Company, L.P. or any of an interest its Affiliates is a party which are in effect on the Issue Date or any instruments or securities held by ▇▇▇▇▇ & Company, L.P. or any of its Affiliates on the Issue Date or the payment of fees, reimbursements, indemnifications and other amounts and other transactions pursuant to such agreements, instruments or securities; or
(4) transactions between the Issuer and any Restricted Subsidiary of the Issuer, or between one Restricted Subsidiary of the Issuer and another Restricted Subsidiary of the Issuer; provided that not more than 20% of any such Restricted Subsidiary is owned by any Affiliate of the Issuer or any of its Restricted Subsidiaries (other than the Issuer or a Wholly-Owned Subsidiary of the Issuer which is a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate).
Appears in 1 contract
Sources: Indenture (Nortek Holdings Inc)
Limitation on Transactions with Affiliates. The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, enter into or suffer to exist any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactionstransactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) involving in the aggregate $1,000,000 or more with any Affiliate except for of the Issuer (iother than the Issuer or a Wholly Owned Restricted Subsidiary) unless:
(a) such transaction or series of transactions is in writing on terms that are no less favorable to the making of any Issuer or such Restricted PaymentSubsidiary, as the case may be, than would be available in a comparable transaction in arm’s-length dealings with an unrelated third party;
(iib) with respect to any transaction or series of transactions between involving aggregate payments in excess of $5,000,000, the Company Issuer delivers an Officers’ Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above and one such transaction or more series of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% related transactions has been approved by a majority of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company (and approved by a majority of Independent Directors of the Company or, in the event there is only one Independent Director of the Company, by such Independent Director); and
(c) with respect to any transaction or series of transactions involving aggregate payments in their reasonableexcess of $10,000,000, good faith judgment a written opinion to the Issuer or such Restricted Subsidiary from an independent investment banking, accounting or appraisal firm of nationally recognized standing that the terms of such transaction are not materially less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate. Notwithstanding the foregoing, this Section 1010 shall not apply to (as evidenced by a Board Resolution filed i) any transaction with the Trustee) to be (a) in the best interests an officer or director of the Company or such the Issuer entered into in the ordinary course of business (including compensation or employee benefit arrangements with any officer or director of the Company or the Issuer), (ii) any transaction entered into by the Issuer or any Wholly Owned Restricted Subsidiary with a Wholly Owned Restricted Subsidiary, and (biii) upon terms which would be obtainable by transactions in existence on the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateIssue Date.
Appears in 1 contract
Limitation on Transactions with Affiliates. (b) The Company shall not, and restrictions set forth in clause (a) shall not permit apply to (i) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or consultants of the Company or any Restricted Subsidiary to, engage of the Company as determined in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable good faith by the Company Company's Board of Directors or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation senior management (including, without limitation, amounts paid fees and compensation under the Management Services Agreement with the Principal as in effect on the Issue Date); (ii) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (iii) any agreement as in effect as of the Issue Date or any amendment thereto or any transaction contemplated thereby (including pursuant to employee benefit plansany amendment thereto) for in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the personal services of officersHolders in any material respect than the original agreement as in effect on the Issue Date; (iv) Restricted Payments permitted by this Indenture; (v) the existence of, directors and employees of or the performance by the Company or any of its Restricted SubsidiariesSubsidiaries of its obligations under the terms of, so long any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as the Board of Directors of the Company in good faith shall have approved Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Saleexistence of, or a sale, transfer or other disposition (other than to the performance by the Company or any of its Restricted Subsidiaries) Subsidiaries of an interest in a Restricted Investmentobligations under, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any future amendment to any such transaction which is determined existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (v) to the independent members extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders of the Board of Directors of the Company, Notes in their reasonable, good faith judgment any material respect; (as evidenced by a Board Resolution filed with the Trusteevi) to be (a) in the best interests of the Company or such Restricted Subsidiarytransactions permitted by, and (b) upon terms which would be obtainable by complying with, the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate.provisions of Article Five;
Appears in 1 contract
Sources: Indenture (McMS Inc)
Limitation on Transactions with Affiliates. The Company Except as set forth in Part 5.8 of the Disclosure Schedule, from the date hereof until the Closing Date, the Sellers shall not, and shall not permit any Restricted Subsidiary of their Subsidiaries to, engage in directly or indirectly, sell, lease, transfer or otherwise dispose of any transaction with of the Target Assets or to permit any Target Subsidiary to purchase any property or assets from, or enter into any contract, understanding, loan, advance or guarantee with, or for the benefit of, an Affiliate upon of the Sellers (other than Targeted Businesses) or any of their Subsidiaries (other than Target Subsidiaries) (an "AFFILIATE TRANSACTION"), unless (a) such Affiliate Transaction is on terms which would be any that are no less favorable to the Targeted Businesses or such Target Subsidiary than those obtainable by the Company or a Restricted Subsidiary that could have been obtained in a comparable arm's-length transaction from an unrelated Person and (b) with a Person which is not an Affiliate. The Company shall not, and shall not permit respect to any Restricted Subsidiary to, engage in any transaction Affiliate Transaction (or series of related transactionsAffiliate Transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making having a potential value of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% $500,000, in addition to compliance with clause (a), such Affiliate Transaction shall also be approved by a majority of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent disinterested members of the Board of Directors of Sylvan or the CompanyBoard of Managers of Ventures, as the case may be, after determining, in their reasonable, reasonable good faith judgment judgment, that (as i) such transaction is in the best interest of the Targeted Businesses based on full disclosure of all relevant facts and circumstances and (ii) such transaction is on fair and reasonable terms competitive with those that could be obtained from an unrelated third party (such approval and determination to be evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests resolution of such disinterested directors of the Company Board of Directors of Sylvan or such Restricted Subsidiarythe Board of Managers of Ventures, and (b) upon terms which would be obtainable as the case may be). Notwithstanding the foregoing, the provisions of this Section 5.8 shall not prevent the Sellers from entering into this Agreement or any of the other Transactions contemplated by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatethis Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sylvan Learning Systems Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any business or enter into or suffer to exist any transaction with or series of related transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate upon of the Company (an "Affiliate Transaction"), unless:
(i) the terms which would be any of such Affiliate Transaction are not less favorable than those obtainable by to the Company or a such Restricted Subsidiary Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person which that is not an Affiliate. The Affiliate of the Company;
(ii) if such Affiliate Transaction involves aggregate payments or value in excess of $10 million, the Board of Directors (including at least a majority of the disinterested members of the Board of Directors) approves such Affiliate Transaction and, in its good faith judgment, believes that such Affiliate Transaction complies with clause (a)(i) of this Section as evidenced by a Board Resolution promptly delivered to the Trustee; and
(iii) if such Affiliate Transaction involves aggregate payments or value in excess of $25 million, the Company shall notobtains a written opinion from an Independent Financial Advisor to the effect that the consideration to be paid or received in connection with such Affiliate Transaction is fair, from a financial point of view, to the Company and shall not permit its Restricted Subsidiaries, taken as a whole.
(b) Notwithstanding the foregoing limitation, the Company or any Restricted Subsidiary to, engage in any transaction (may enter into or series of related transactions) involving in suffer to exist the aggregate $1,000,000 or more with any following Affiliate except for Transactions:
(i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries in the ordinary course of business;
(provided that no more than 5% of the equity interest in ii) any of its Restricted Subsidiaries is owned by an Affiliate), and Payment permitted to be made pursuant to Section 4.10 hereof or any Permitted Investment;
(iii) the payment of compensation (includingincluding awards or grants in cash, without limitation, amounts paid pursuant to employee benefit planssecurities or other payments) for the personal services of officers, officers and directors and employees of the Company or any of its the Restricted SubsidiariesSubsidiaries entered into by the Company or any Restricted Subsidiary in the ordinary course of business or, so long as if not entered into in the ordinary course of business, that the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; ;
(iv) payments made by the Company or any Restricted Subsidiary in the ordinary course of business pursuant to employment agreements, collective bargaining agreements, employee benefit plans, officer or director indemnification agreements or arrangements for employees, officers or directors, including health and provided further that for life insurance plans, deferred compensation plans, directors' and officers' indemnification agreements and retirement or savings plans, stock option, stock ownership and similar plans and the entering into of such agreements and plans by the Company or any Asset Sale, or Restricted Subsidiary in the ordinary course of business;
(v) transactions with a sale, transfer or other disposition Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, Capital Stock of, or controls, such Person;
(vi) loans or advances to employees or consultants in the ordinary course of business or consistent with past practice not to exceed $5 million in the aggregate at any one time outstanding;
(vii) transactions with Unrestricted Subsidiaries, customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of the Indenture which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), materially no less favorable to the Company or any of its Restricted Subsidiaries) of an interest Subsidiaries than those that would have been obtained in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such comparable transaction which is determined by the independent members Company or such Restricted Subsidiary with an unrelated Person, in the reasonable determination of the Board of Directors of the Company or senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
(viii) the issuance or sale of any Capital Stock (other than Disqualified Capital Stock) of the Company, ;
(ix) any agreement or arrangement as in their reasonable, good faith judgment effect on the Issue Date or any amendment to any such agreement or arrangement (so long as evidenced by a Board Resolution filed with such amendment is not disadvantageous to the TrusteeHolders of the Notes in any material respect) to be or any transaction contemplated thereby;
(ax) in the best interests granting and performance of registration rights for shares of Capital Stock of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable if approved by the Company or a Restricted Subsidiary Board of Directors; and
(xi) any action required to be taken in a comparable arm's-length transaction connection with a Person which is not an Affiliatethe proposed mergers described under "The Proposed Mergers" in the offering memorandum relating to offering of the Notes.
Appears in 1 contract
Sources: Indenture (Gamestop Corp)
Limitation on Transactions with Affiliates. The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any business or enter into or suffer to exist any transaction with or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate upon of the Issuer (an “Affiliate Transaction”) involving payments in excess of $2.5 million, unless:
(a) the terms which would be any of such Affiliate Transaction are no less favorable to the Issuer or that Restricted Subsidiary, as the case may be, taken as a whole, than those obtainable by the Company or a Restricted Subsidiary that could be obtained in a comparable arm'sarm’s-length transaction with a Person which that is not an AffiliateAffiliate of the Issuer, and
(b) if the Affiliate Transaction involves aggregate payments or value in excess of $25.0 million, the Board of Directors (including a majority of the disinterested members of the Board of Directors) approves the Affiliate Transaction and, in its good faith judgment, believes that the Affiliate Transaction complies with clause (a) of this paragraph as evidenced by a resolution of the Board of Directors promptly delivered to the Trustee. The Company shall notNotwithstanding the foregoing limitation, and shall not permit the Issuer or any Restricted Subsidiary to, engage in any transaction may enter into or suffer to exist the following:
(or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (iia) any transaction or series of transactions between the Company Issuer and one or more of its Restricted Subsidiaries or between two or more Restricted Subsidiaries;
(b) any Restricted Payment permitted to be made pursuant to Section 4.05 or any Permitted Investment;
(c) any reasonable or customary employment, consulting, service, severance, termination agreement, employee benefit plan, compensation arrangement, indemnification arrangement, or any similar arrangement entered into by the Issuer or a Restricted Subsidiary with a current or former director, officer or employee of the Issuer or a Restricted Subsidiary and payments related thereto; or any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Issuer, restricted stock plans, restricted stock unit plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of directors, officers and employees of the Issuer or a Restricted Subsidiary approved by the Board of Directors of the Issuer;
(i) reimbursement of employee travel and lodging costs and other business expenses incurred in the ordinary course of business and (ii) loans and advances to employees made in the ordinary course of business in compliance with applicable laws and consistent with the past practices of the Issuer or that Restricted Subsidiary, as the case may be;
(e) any issuance of shares of Capital Stock (other than Disqualified Stock) of the Issuer;
(f) any agreement as in effect on the Effective Date or any amendment, modification, supplement, extension or renewal thereto (so long as such amendment, modification, supplement, extension or renewal is not materially adverse to the interests of the Holders of the Notes) or any transaction contemplated thereby;
(g) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged or consolidated with or into the Issuer or a Restricted Subsidiary, as such agreement may be amended, modified, supplemented, extended or renewed from time to time; provided that such agreement was not entered into in contemplation of such acquisition, merger or consolidation, and so long as any such amendment, modification, supplement, extension or renewal, when taken as a whole, is not materially more disadvantageous to the Holders, in the reasonable determination of two Officers of the Issuer (as evidenced by an Officers’ Certificate), than the applicable agreement as in effect on the date of such acquisition, merger or consolidation;
(h) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Issuer and its Restricted Subsidiaries (and otherwise in compliance with the terms of this Indenture; provided that no more than 5% in the reasonable determination of two Officers of the equity interest in any of its Restricted Subsidiaries is owned Issuer (as evidenced by an AffiliateOfficers’ Certificate), such transactions are on terms that are not materially less favorable, when taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person;
(i) transactions in which the Issuer or any Restricted Subsidiary delivers to the Trustee a letter or opinion from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable, when taken as a whole, than those that might reasonably have been obtained by the Issuer or such Restricted Subsidiary in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate;
(j) the Transactions and (iii) the payment of compensation all fees and expenses related to the Transactions, in each case as disclosed in the Offering Memorandum;
(k) any service, purchase, lease, supply or similar agreement entered into in the ordinary course of business (including, without limitation, amounts paid pursuant to employee benefit plansany joint venture agreement) for between the personal services of officers, directors and employees of the Company Issuer or any Restricted Subsidiary and any Affiliate (other than an Unrestricted Subsidiary) that is a customer, client, supplier, purchaser or seller of its Restricted Subsidiariesgoods or services, so long as the Board of Directors of the Company Issuer determines in good faith shall have approved the that any such agreement is on terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than not materially less favorable to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company Issuer or such Restricted Subsidiary, and (b) upon terms which would Subsidiary than those that could be obtainable by the Company or a Restricted Subsidiary obtained in a comparable arm's-length arms’-length transaction with a Person which an entity that is not an Affiliate;
(l) pledges of equity interests of Unrestricted Subsidiaries to secure Debt of such Unrestricted Subsidiaries; and
(m) transactions entered into as part of a Permitted Receivables Financing on customary terms (as determined by the Issuer’s Board of Directors).
Appears in 1 contract
Sources: Indenture (Energizer Holdings Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any transaction other transactions respect thereto with, any of its Affiliates, except:
(i) (A) transactions with the Company or any Affiliate upon Restricted Subsidiary and (B) transactions involving aggregate payments or consideration of less than the greater of $30,000,000 and 3.0% of Consolidated EBITDA for the most recently ended Test Period prior to such transaction;
(ii) on terms which substantially as favorable to the Company or such Restricted Subsidiary as would be any less favorable than those obtainable by the Company or a Restricted such Subsidiary at the time in a comparable arm'sarm’s-length transaction with a Person which is not other than an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and ;
(iii) the payment of compensation fees and expenses related to the Transactions;
(including, without limitation, amounts paid iv) issuances of Equity Interests of the Company to the extent not otherwise prohibited by this Indenture;
(v) employment and severance arrangements (including salary or guaranteed payments and bonuses) between the Company and the Restricted Subsidiaries and their respective officers and employees in the ordinary course of business or otherwise in connection with the Transactions;
(vi) payments by the Company and the Restricted Subsidiaries pursuant to employee benefit planstax sharing agreements among the Company and the Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company and the Restricted Subsidiaries, to the extent payments are permitted by Section 4.06;
(vii) for the personal services payment of officerscustomary fees and reasonable out-of-pocket costs to, directors and indemnities provided on behalf of, directors, officers and employees of a Parent Entity (or any direct or indirect parent company thereof), the Company and the Restricted Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of the Company and the Restricted Subsidiaries;
(viii) transactions pursuant to any agreement or arrangement in effect as of the Issue Date, or any of its Restricted Subsidiariesamendment, modification, supplement or replacement thereto (so long as any such amendment, modification, supplement or replacement is not disadvantageous in any material respect to Holders when taken as a whole as compared to the applicable agreement or arrangement as in effect on the Issue Date as determined by the Company in good faith);
(ix) Restricted Payments permitted under Section 4.06 (or Investments made pursuant to clause (m) of the definition of “Permitted Investments”);
(x) customary payments by the Company and any of the Restricted Subsidiaries made for any financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions, divestitures or financings) and any subsequent transaction or exit fee, which payments are approved by the majority of the members of the Board of Directors or a majority of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent disinterested members of the Board of Directors of such Person in good faith;
(xi) the issuance or transfer of Equity Interests (other than Disqualified Equity Interests) of the Company to any Permitted Holder or to any former, current or future director, manager, officer, employee or consultant (or any Affiliate of any of the foregoing) of the Company, any of the Subsidiaries or any direct or indirect parent thereof;
(xii) dispositions of Equity Interests in their reasonablean Unrestricted Subsidiary to the extent otherwise permitted hereunder;
(xiii) Affiliate repurchases of the loans and/or commitments under the First Lien Credit Facilities to the extent permitted under agreements governing the First Lien Credit Facilities, good faith judgment of the Notes, and the holding of such loans, the Notes and the payments and other related transactions in respect thereof;
(as evidenced xiv) transactions in connection with any Permitted Receivables Financing;
(xv) loans, Investments and other transactions by a Board Resolution filed with the TrusteeCompany and its Restricted Subsidiaries to the extent permitted under this Indenture;
(xvi) to be loans, advances and other transactions between or among the Company, any Restricted Subsidiary and/or any joint venture (aregardless of the form of legal entity) in the best interests of which the Company or any Subsidiary has invested (and which Subsidiary or joint venture would not be an Affiliate of a Parent Entity but for such Restricted Parent Entity’s or a Subsidiary, ’s ownership of Equity Interests in such joint venture or Subsidiary) to the extent not otherwise prohibited hereunder; and
(xvii) the existence and (b) upon terms which would be obtainable by performance of agreements and transactions with any Unrestricted Subsidiary that were entered into prior to the Company or designation of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that the transaction was permitted at the time that it was entered into with such Restricted Subsidiary and transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary; provided that such transaction was not entered into in a comparable arm's-length transaction with a Person which is not an Affiliatecontemplation of such designation or redesignation, as applicable.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall not, not and shall not permit any Restricted Subsidiary to, engage in sell, lease, transfer or otherwise dispose of any transaction with of its properties or assets to, or purchase any property or assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate upon (including any Unrestricted Subsidiary) (each of the foregoing, an "Affiliate Transaction"), unless:
(a) such Affiliate Transaction is on terms which would be any that are no less favorable to the Company or its Restricted Subsidiaries than those obtainable that would have been obtained in a comparable transaction by the Company or such Subsidiaries with an unrelated Person; and
(b) if such Affiliate Transaction involves aggregate payments in excess of $25 million, such Affiliate Transaction has been approved by a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% majority of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent disinterested members of the Board of Directors of the Company, and the Company delivers to the Trustee no later than ten business days following a request from the Trustee a resolution of the Board of Directors of the Company set forth in their reasonable, good faith judgment (as evidenced by a Board Resolution filed an Officers' Certificate certifying that such Affiliate Transaction has been so approved and complies with the Trustee) to be clause (a) above; provided, however, that (i) the payment of compensation to directors and management of EchoStar and its Subsidiaries; (ii) transactions between or among the Company and its Wholly Owned Subsidiaries (other than Unrestricted Subsidiaries of the Company); (iii) any dividend, distribution, sale, conveyance or other disposition of any assets of, or Equity Interests in, any Non-Core Assets or ETC or the proceeds of a sale, conveyance or other disposition thereof, in accordance with the best interests provisions of this Indenture; (iv) transactions permitted by the provisions of this Indenture described above under clauses (1), (2), (4), (5), (6), (8), (9), (10), (11), (14) and (15) of the second paragraph of Section 4.07 of this Indenture; (v) so long as it complies with clause (a) above, the provision of backhaul, uplink, transmission, billing, customer service, programming acquisition and other ordinary course services by the Company or any of its Restricted Subsidiaries to Satellite Communications Operating Corporation and to Transponder Encryption Services Corporation on a basis consistent with past practice; and (vi) any transactions between the Company or any Restricted Subsidiary of the Company and any Affiliate of the Company the Equity Interests of which Affiliate are owned solely by the Company or one of its Restricted Subsidiaries, on the one hand, and by Persons who are not Affiliates of the Company or such Restricted SubsidiarySubsidiaries of the Company, and (b) upon terms which would on the other hand, shall, in each case, not be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatedeemed Affiliate Transactions.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company business or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) enter into any transaction or series of related transactions with or for the benefit of any Affiliate, any holder of 5% or more of any class of Equity Interests or any officer, director or employee of the Company or any Restricted Subsidiary (each, an "Affiliate Transaction"), unless such Affiliate Transaction is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than could reasonably be obtained at such time in a comparable transaction with an unaffiliated third party. For any such transaction that involves value in excess of $5.0 million, the Company shall deliver to the Trustee an Officers' Certificate stating that a majority of the Disinterested Directors has determined that the transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution delivered to the Trustee. For any such transaction that involves value in excess of $20.0 million, the Company shall also obtain a written opinion from an Independent Financial Advisor to the effect that such transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary, as the case may be. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions between or among the Company and one or more of its Restricted Subsidiaries or between two or more of its among Restricted Subsidiaries Subsidiaries; (provided that no more than 5% ii) customary directors' fees, indemnification and similar arrangements, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the equity interest Company or any Restricted Subsidiary entered into in any the ordinary course of its Restricted Subsidiaries is owned by an Affiliatebusiness (including customary benefits thereunder), and ; (iii) the payment of compensation (including, without limitation, amounts paid transactions pursuant to employee benefit plansagreements 47 -42- or arrangements in effect on the Issue Date, as such agreements or arrangements are in effect on the Issue Date or as thereafter amended or supplemented in a manner not adverse to the Holders; (iv) for the personal services of loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof business and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration thereforconsistent with past business practices; and provided further that for (v) any Asset Sale, or a sale, transfer or other disposition (other than to transactions between the Company or any Restricted Subsidiary, on the one hand, and any Affiliate of its Restricted Subsidiaries) of an interest the Company engaged primarily in a Restricted InvestmentTelecommunications Business, involving an amount greater than $25,000,000on the other hand, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (ax) in the best interests ordinary course of business and consistent with commercially reasonable practices or (y) approved by a majority of the Disinterested Directors; (vi) any payment pursuant to any tax sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes; provided, however, that such payment is not greater than that which the Company would be required to pay as a stand-alone taxpayer; (vii) the pledge of Equity Interests of Unrestricted Subsidiaries to support the Indebtedness thereof; (viii) Restricted Subsidiary, Payments permitted under Section 4.11; and (bix) upon terms which would be obtainable the issuance and sale by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatefor cash of Qualified Equity Interests.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including, without limitation, any Restricted Subsidiary topurchase, engage in sale, lease or exchange of property or the rendering of any transaction service, with any Affiliate of the Borrower unless such transaction is (a) otherwise permitted under this Agreement, and (b) upon terms which would be any no less favorable to the Borrower or such Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-arm's length transaction with a Person which is not an Affiliate. The Company ; provided that nothing contained in this subsection 8.11 shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for be deemed to prohibit:
(i) the making Borrower or any of its Subsidiaries from entering into or performing any Restricted Paymentconsulting, management or employment agreements or other compensation arrangements with a director, officer or employee of the Borrower or any of its Subsidiaries, provided that the annual aggregate base cash compensation with respect to any such director, in his or her capacity as such is not in excess of $100,000 for each such director;
(ii) any the payment of transaction or series of expenses in connection with this Agreement, the Transactions and the other transactions between the Company related hereto and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and thereto;
(iii) the payment Borrower or any of compensation its Subsidiaries from entering into, making payments or satisfying obligations pursuant to and otherwise performing agreements in favor of CDR-PC Acquisition, CD&R, CD&R Fund V, the Affiliates thereof and each person who becomes a director, officer, agent or employee of the Borrower, the Borrower or any of their respective Subsidiaries, pursuant to the CDR Agreements or in respect of liabilities (A) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of securities by the Borrower or any of its Subsidiaries, (B) incurred to third parties for any action or failure to act of the Borrower or any of its Subsidiaries, predecessors or successors, (C) arising out of the performance by CD&R of management consulting or financial advisory services provided to the Borrower or any of its Subsidiaries, (D) arising out of the fact that any indemnitee was or is a director, officer, agent or employee of the Borrower or any of its Subsidiaries, or is or was serving at the request of any such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or enterprise or (E) to the fullest extent permitted by Delaware or other applicable state law, out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of the Borrower or any of its Subsidiaries;
(iv) the Borrower or any of its Subsidiaries from performing any agreements or commitments with or to any Affiliate existing on the Effective Date and described on Schedule 8.11(iv);
(v) any transaction with any Receivables Subsidiary;
(vi) the Transactions and the other transactions expressly contemplated by the Transaction Documents, including, without limitation, amounts paid pursuant to employee benefit plansthe Spin-Offs and the Stock Repurchase; or
(vii) for the personal services of officersany transaction permitted under subsection 8.2(b), directors and employees of the Company 8.4(c), 8.4(e), 8.4(h), 8.5, 8.6(f), 8.6(j), 8.7, 8.9(e), or 8.9(f), or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateWholly Owned Subsidiary of the Borrower.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by (a) Neither the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company nor any of its Subsidiaries shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) enter into any transaction or series of transactions between the Company and one to sell, lease, transfer, exchange or more otherwise dispose of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate)properties or assets to or to purchase any property or assets from, and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) or for the personal services of officersdirect or indirect benefit of, directors and employees an Affiliate of the Company or of any Subsidiary of its Restricted Subsidiariesthe Company, so long as make any Investment in or enter into any contract, agreement, understanding, loan, advance or Guarantee with, or for the direct or indirect benefit of, an Affiliate of the Company or of any Subsidiary of the Company (each, including any series of transactions with one or more Affiliates, an "Affiliate Transaction"), unless (i) the Board of Directors of the Company in good faith shall have approved or the relevant Subsidiary determines, as evidenced by a Board Resolution, that the terms thereof of such Affiliate Transaction are fair and deemed reasonable to the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; Company and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than no less favorable to the Company or any of its Restricted Subsidiaries) of an interest the relevant Subsidiary than those that could have been obtained at that time in a Restricted Investmentcomparable arms-length transaction by the Company or such Subsidiary with an unrelated Person, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any (ii) such transaction which is determined has been approved by the independent members a majority of the Board of Directors of the CompanyCompany or the relevant Subsidiary who have no direct or indirect interest in the Affiliate Transaction or in the Affiliate that is a party to the Affiliate Transaction, or in any other party that is an Affiliate of any such Affiliate, and (iii) the Company shall have delivered to the Holders an Officers' Certificate certifying that the conditions set forth in clauses (i) and (ii) above have been satisfied.
(b) Neither the Company nor any of its Subsidiaries shall enter into an Affiliate Transaction involving or having a potential aggregate value of more than $1,000,000 unless, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with addition to the Trustee) to be requirements of (a) above, the Board of Directors of the Company or the relevant Subsidiary shall first have received a written opinion from an Independent Financial Advisor for the benefit of the Company and the Holders, which firm is not receiving any contingent fee or other consideration directly or indirectly related to the successful completion of the Affiliate Transaction, to the effect that the proposed Affiliate Transaction is fair to the Company from a financial point of view.
(c) The provisions of this Section 7.8 shall not apply to (i) any Restricted Payment that is made in compliance with the best interests provisions of Section 7.5, (ii) the reasonable and customary fees and compensation paid to or indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Subsidiary, as determined by the Board of Directors of the Company or such Restricted SubsidiarySubsidiary or the senior management thereof in good faith, (iii) transactions exclusively between or among the Company and any Wholly-Owned Subsidiary or exclusively between or among Wholly-Owned Subsidiaries provided 12 such transactions are not otherwise prohibited by this Agreement, and (biv) upon any Affiliate Transaction in existence as of the date hereof (including but not limited to the Management Incentive Plan), the terms of which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateare listed on SCHEDULE 4.27.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary of its Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe sale, purchase, exchange or lease of assets, property or services) for the personal services of officers, directors with any Affiliate (including Parent and employees of entities in which the Company or any of its Restricted Subsidiaries own a minority interest) or holder of 10% or more of the Company's Common Stock (an "Affiliate Transaction") or extend, renew, waive or otherwise modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Wholly Owned Subsidiaries; or (ii) the terms of such Affiliate Transaction are fair and reasonable to the Company or such Subsidiary, so long as the case may be, and the terms of such Affiliate Transaction are at least as favorable as the terms which could be obtained by the Company or such Subsidiary, as the case may be, in a comparable transaction made on an arm's-length basis between unaffiliated parties. In any Affiliate Transaction involving an amount or having a value in excess of $5,000,000 which is not permitted under clause (i) above, the Company must obtain a Board Resolution certifying that such Affiliate Transaction complies with clause (ii) above. In transactions with a value in excess of $10,000,000 which are not permitted under clause (i) above (other than loans from the Parent to the Company at a rate not in excess of the incremental borrowing rate of the Company as determined in good faith by the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset SaleCompany, or a sale, transfer or other disposition (other than to loans from the Company or any Subsidiary to the Parent, in each case at a rate not in excess of its Restricted Subsidiaries) of an interest in a Restricted Investmentthe Parent's incremental borrowing rate, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined in good faith by the Board of Directors of the Company), the Company must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm.
(b) The limitations set forth in Section 4.10(a) will not apply to (i) any Restricted Payment that is not prohibited by Section 4.08 hereof, (ii) Indebtedness incurred by the Company to the Parent, provided such Indebtedness has terms no more onerous than those contained in the New Credit Facility, or (iii) any compensation-related transaction, approved by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members committee of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests an officer or director of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted of any Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatehis or her capacity as officer or director entered into in the ordinary course of business.
Appears in 1 contract
Sources: Indenture (Cole National Corp /De/)
Limitation on Transactions with Affiliates. The Company Borrower shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any business or enter into or suffer to exist any transaction with or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate upon of the Borrower (an “Affiliate Transaction”), unless:
(a) the terms which would be any of such Affiliate Transaction are:
(1) set forth in writing, and
(2) no less favorable to the Borrower or that Restricted Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary that could be obtained in a comparable arm'sarm’s-length transaction with a Person which that is not an AffiliateAffiliate of the Borrower, and
(b) if the Affiliate Transaction involves aggregate payments or value in excess of $10.0 million, the Board of Directors (including a majority of the disinterested members of the Board of Directors) approves the Affiliate Transaction and, in its good faith judgment, believes that the Affiliate Transaction complies with clauses (a)(1) and (2) of this paragraph as evidenced by a Board Resolution promptly delivered to the Administrative Agent. The Company shall notNotwithstanding the foregoing limitation, and shall not permit the Borrower or any Restricted Subsidiary to, engage in any transaction may enter into or suffer to exist the following:
(or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (iia) any transaction or series of transactions between the Company Borrower and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (in the ordinary course of business, provided that no more than 5% of the equity interest in total voting power of the Voting Stock (on a fully diluted basis) of any of its such Restricted Subsidiaries Subsidiary is owned by an AffiliateAffiliate of the Borrower (other than a Restricted Subsidiary), and ;
(iiib) any Restricted Payment permitted to be made pursuant to Section 7.02 or any Permitted Investment;
(c) the payment of compensation (including, without limitation, including amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company Borrower or any of its the Restricted Subsidiaries, so long as as, in the case of executive officers and directors, the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such the compensation or fees to be fair consideration therefor;
(d) loans and advances to employees made in the ordinary course of business in compliance with applicable laws and consistent with the past practices of the Borrower or that Restricted Subsidiary, as the case may be, provided that those loans and advances do not exceed $10.0 million in the aggregate at any one time outstanding;
(e) any transaction effected as part of a Qualified Receivables Transaction or any transaction involving the transfer of accounts receivable of the type specified in the definition of “Credit Facility” and permitted under clause (b) of the second paragraph of Section 7.01;
(f) the Existing Policies or any transaction contemplated thereby; and provided further that for and
(g) any Asset Sale, or a sale, transfer or other disposition sale of shares of Capital Stock (other than to the Company or any of its Restricted SubsidiariesDisqualified Stock) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateBorrower.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any Restricted Subsidiary to, directly or indirectly, enter into any transaction with an Affiliate, including, without limitation, any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or dispose of any properties or assets to, or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, an Affiliate (each such transaction or series of related transactions with such Affiliate that are part of a common plan are referred to as an "Affiliate Transaction"), except in good --------------------- faith and on terms that are determined by the Board of Directors, or, if applicable, a committee comprising the Independent Directors of the Board of Directors, and, in the case of any Affiliate Transaction involving aggregate payments or other transfers by the Company and/or its Restricted Subsidiaries in excess of $1.0 million (including cash and non-cash payments and benefits valued at their fair market value by the Board of Directors in good faith), set forth in a resolution adopted by such committee, to be no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction on an arm's length basis from an unrelated person.
(b) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable Transaction involving aggregate payments or other transfers by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of and/or its Restricted Subsidiaries or between two or more in excess of its Restricted Subsidiaries $7,500,000 (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned including cash and non-cash payments and benefits valued at their fair market value by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors in good faith) unless the Company delivers to the Trustee:
(i) a resolution of the Company Board of Directors, or, if applicable, a committee comprising the Independent Directors of the Board of Directors, stating that a majority of such directors has, in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter faith, determined such Affiliate Transaction to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than no less favorable to the Company or any of its the relevant Restricted Subsidiaries) of an interest Subsidiary than those that would have been obtained in a Restricted Investmentcomparable transaction on an arm's length basis from an unrelated person and otherwise complies with the provisions of this Indenture; and
(ii) (A) with respect to any Affiliate Transaction involving the incurrence of Indebtedness, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an written opinion of a nationally recognized investment banking or accounting firm filed experienced in the review of similar types of transactions, (B) with respect to any Affiliate Transaction involving the Trustee. Notwithstanding transfer of real property, fixed assets or equipment, either directly or by a transfer of 50% or more of the foregoing, this provision shall not prohibit Capital Stock of a Restricted Subsidiary which holds any such transaction which is determined by real property, fixed assets or equipment, a written appraisal from a nationally recognized appraiser, experienced in the independent members review of the Board similar types of Directors transactions or (C) with respect to any Affiliate Transaction not otherwise described in (A) and (B) above, a written certification from a nationally recognized professional or firm experienced in evaluating similar types of the Companytransactions, in their reasonableeach case, good faith judgment (as evidenced by a Board Resolution filed with stating that the Trustee) terms of such transaction are fair to be (a) in the best interests of the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(c) Notwithstanding paragraphs (a) and (b) upon of this Section 4.03, this Section 4.03 shall not apply to:
(i) transactions between or among the Company and any Restricted Subsidiaries;
(ii) transactions permitted by Section 4.06;
(iii) fees and reasonable compensation paid to, and indemnity provided on behalf of, directors, officers or employees of the Company or any Subsidiary as determined in good faith by the Board of Directors;
(iv) any issuance, award or grant of securities or payment in cash or otherwise made as compensation for services rendered pursuant to the terms which would be obtainable of any Incentive Arrangement, as determined in good faith by the Board of Directors;
(v) loans or advances to employees or directors of the Company or any Restricted Subsidiary in the ordinary course and in an aggregate amount not to exceed $1,000,000 at any one time outstanding; or
(vi) any transaction pursuant to an Existing Affiliate Agreement, including any amendments thereto entered into after the Issue Date, provided that the terms of any such amendment are not less favorable to the Company than the terms of the relevant agreement in effect prior to any such amendment as determined in good faith by the Board of Directors. As used in this clause (vi), "Existing Affiliate Agreement" means the ---------------------------- Morningside Management Agreement, the ▇▇▇▇▇▇-AM Management Agreement, the AM Cosmetics Broker Agreement, the AM Manufacturing Agreement, the Distribution Agreement and the License Agreement.
(d) Notwithstanding paragraphs (a), (b) and (c) of this Section 4.03, any Affiliate Transaction between the Company and an Affiliate of the Company relating to the provision to the Company or a Restricted Subsidiary of research and development, manufacturing, sales and/or distribution services in a comparable arm's-length transaction with a Person which is the ordinary course of business shall not an Affiliatebe subject to clause (ii) of paragraph (b) of this Section 4.03.
Appears in 1 contract
Sources: Indenture (Carson Products Co)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including, without limitation, any Restricted Subsidiary topurchase, engage in sale, lease or exchange of property or the rendering of any transaction service, with any Affiliate unless such transaction is (a) otherwise permitted under this Agreement and (b) upon terms which would be any no less favorable than those obtainable by to the Company or a Restricted Subsidiary such Subsidiary, as the case may be, than it would obtain in a comparable arm's-arm's length transaction with a Person which is not an Affiliate. The Company ; provided that nothing contained in this Section 8.10 hereof shall notbe deemed to prohibit:
(i) the payment of transaction expenses in connection with this Agreement and the Note Purchase Transactions, and shall including, but not permit any Restricted Subsidiary limited to, engage in the payment by the Company of the Commitment Fee due to TCII or any transaction of its Affiliates other than Holdings, the Company or any of their Subsidiaries;
(ii) the Company or series any of related transactions) involving its Subsidiaries from entering into or performing an agreement with GSCP for the rendering of management consulting or financial advisory services for compensation not to exceed in the aggregate $1,000,000 1,720,000 per year plus reasonable out-of-pocket expenses; provided that at any time during which a Default or more with any Affiliate except for (i) the making an Event of any Restricted PaymentDefault has occurred and is continuing, (ii) any transaction or series of transactions between the Company and one its Subsidiaries may not make any payments to GSCP under any such agreement and such payments may accrue to GSCP and may be paid in full after such Default or more Event or Default has been cured or waived; provided further that at any time during which the Company and its Subsidiaries are not permitted to make payments to GSCP under any such agreements, GSCP may elect to receive Capital Stock of its Restricted Subsidiaries or between two or more Holdings in lieu of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and such payments;
(iii) the payment Company or any of compensation (includingits Subsidiaries from entering into, without limitation, amounts paid making payments pursuant to and otherwise performing an indemnification and contribution agreement in favor of any person who is or becomes a director, officer, agent or employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as in respect of liabilities (A) arising under the Board Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to securities by the Company or any of its Restricted Subsidiaries, (B) incurred to third parties for any action or failure to act of the Company or any of its Subsidiaries, predecessors or successors, (C) arising out of the fact that any indemnitee was or is a director, officer, agent or employee of the Company or any of its Subsidiaries, or is or was serving at the request of any such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or enterprise or (D) to the fullest extent permitted by Delaware or other applicable state Law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of the Company or any of its Subsidiaries;
(iv) the Company or any of its Subsidiaries from performing any agreements or commitments with or to any Affiliate existing on the Closing Date and described on Schedule 8.10 hereto;
(v) any transaction permitted under Section 8.3(k), 8.4(d), 8.4(i), 8.4(j), 8.4(k), 8.5, 8.7, 8.9(e) or 8.9(k) hereof, or any transaction with a Wholly Owned Subsidiary of the Company,
(vi) the Company or any of its Subsidiaries from performing its obligations under the Tax Sharing Agreement to the extent permitted by Section 8.7(d) hereof (including interest and penalties); or
(vii) the making of loans to the Company by TCII or any Affiliate thereof other than Holdings, the Company and their Subsidiaries pursuant to this Agreement. For purposes of this Section 8.10, any transaction with any Affiliate shall be deemed to have satisfied the standard set forth in clause (b) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any first sentence hereof if (i) such transaction which is determined approved by the independent members a majority of the Board of Disinterested Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests board of directors of the Company or such Restricted Subsidiary, and or (bii) upon terms which would be obtainable by in the event that at the time of any such transaction, there are no Disinterested Directors serving on the board of directors of the Company or such Subsidiary, such transaction shall be approved by a Restricted Subsidiary nationally recognized expert with expertise in a comparable arm's-length appraising the terms and conditions of the type of transaction with a Person for which approval is not an Affiliaterequired.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall not, and shall not cause or permit any of the Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, conduct any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company business or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between with, or for the Company and one benefit of, any of their respective Affiliates or any beneficial holder of 10% or more of its Restricted Subsidiaries or between two or more any class of its Restricted Subsidiaries (provided that no more than 5% Capital Stock of the equity interest Company or any officer, director or employee of the Company or any Restricted Subsidiary (each, an "Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms that are no less favorable to the Company or the Restricted Subsidiary, as the case may be, than those which could have been obtained in a comparable transaction at such time from Persons who do not have such a relationship, (ii) with respect to any Affiliate Transaction or series of its Restricted Subsidiaries is owned Affiliate Transactions involving aggregate payments or value equal to or greater than $1.0 million, the Company shall have delivered an Officers' Certificate to the Trustee certifying that such Affiliate Transaction or series of Affiliate Transactions has been approved by an Affiliate)a majority of the Board of Directors of the Company, including a majority of the disinterested directors of the Board of Directors of the Company, and (iii) with respect to any Affiliate Transaction or series of Affiliate Transactions involving aggregate payments or value equal to or greater than $5.0 million, the payment Company shall have obtained a written opinion from an Independent Financial Advisor stating that the terms of such Affiliate Transaction or series of Affiliate Transactions are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved, as the case may be. Notwithstanding the foregoing, the restrictions set forth in this Section 10.14 shall not apply to (i) transactions with or among the Company and the Restricted Subsidiaries; (ii) customary directors' fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation (including, without limitation, amounts paid pursuant to or employee benefit plansarrangements and incentive arrangements with any officer, director or employee of the Company or any Restricted Subsidiary entered into in the ordinary course of business (including customary benefits thereunder) for and payments under any indemnification arrangements permitted by applicable law; (iii) the personal services issue and sale by the Company to its stockholders of Capital Stock (other than Redeemable Capital Stock); (iv) any dividends made in compliance with Section 10.13; (v) loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of its Restricted Subsidiaries, so long as business; (vi) the Board incurrence of Directors intercompany Indebtedness permitted pursuant to clause (v) of the Company second paragraph of Section 10.11; (vii) Affiliate Transactions consummated prior to the Issue Date and any renewal or replacement thereof on terms and conditions no less favorable in good faith shall have approved any respect than that existing on the Issue Date; (viii) payments to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ pursuant to the Consulting Agreement (as in effect on the Issue Date) not to exceed $1.25 million in any fiscal year (exclusive of reimbursement of expenses); (ix) loans and advances to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ made after the Issue Date not to exceed $350,000 in the aggregate at any one time outstanding; and (x) payments to Acumen Consulting Group, Inc. as required by and pursuant to the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment Service Agreement (as evidenced by a Board Resolution filed with in effect on the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateIssue Date).
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in , contract, agreement, loan, advance or guarantee with, or for the aggregate $1,000,000 or more with benefit of, any Affiliate except for of the Company (each of the foregoing, an “Affiliate Transaction”), unless:
(i) such Affiliate Transaction is on terms that are not materially less favorable to the making of any Company or the relevant Restricted Payment, Subsidiary than those that could reasonably have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any transaction Affiliate Transaction or series of transactions between related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, the Company and one or more delivers to the Trustee a resolution adopted in good faith by the majority of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company approving such Affiliate Transaction and set forth in good faith shall have approved an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above (on which the terms thereof Trustee may conclusively and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; exclusively rely). The foregoing limitation does not limit, and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined apply to:
(1) Restricted Payments that are permitted by the independent provisions of this Indenture pursuant to Section 4.7 and Permitted Investments;
(2) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of the Company or a Restricted Subsidiary;
(3) the payment (and any agreement, plan or arrangement relating thereto) of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Company or any Restricted Subsidiary;
(4) transactions between or among the Company and/or its Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Company otherwise permitted hereunder;
(6) any agreement or arrangement as in effect on the Issue Date and any amendment, extension or modification thereto so long as such amendment, extension or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(7) transactions in which the Company delivers to the Trustee a written opinion from a nationally recognized investment banking accounting or appraisal firm (on which the Trustee may conclusively and exclusively rely) to the effect that the transaction is fair, from a financial point of view, to the Company and any relevant Restricted Subsidiaries;
(8) any contribution of capital to the Company;
(9) the establishment of the ESOT;
(10) Permitted ESOP Transactions;
(11) Amendments to the ESOP Documentation that are not materially adverse to the interests of the Holders; and
(12) transactions with lessors of equipment, customers, clients, suppliers or purchasers or sellers of goods or services, in their reasonableeach case, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests ordinary course of business on terms that are not materially less favorable to the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable as the case may be, as determined in good faith by the Company or a Restricted Subsidiary Company, than those that could be obtained in a comparable arm's-arm’s length transaction with a Person which that is not an AffiliateAffiliate of the Company.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including, without limitation, any Restricted Subsidiary topurchase, engage in sale, lease or exchange of property or the rendering of any transaction service, with any Affiliate unless such transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary course of the business of the Borrowers and their Subsidiaries and (c) upon fair and reasonable terms which would be any no less favorable to the applicable Borrower or Subsidiary than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-arm's length transaction with a Person which is not an Affiliate. The ; provided that, notwithstanding anything in this Agreement to the contrary, the Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for may (i) unless a Default under subsection 7(a) has occurred and is continuing or would result therefrom and the making Administrative Agent has or the Required Lenders have determined the payment of management fees is not appropriate and have so notified the Company, pay management fees in an aggregate amount not to exceed $1,000,000 in any Restricted Paymentfiscal year of the Company pursuant to the Management Agreement referenced in Section 3.11 of the Recapitalization Agreement (the "Management Fees"), provided that if, as a result of the continued existence of such a Default, payment of the Management Fees otherwise due in any fiscal year is not permitted by this clause (i) to be paid in such fiscal year, (x) such Management Fees may be paid in any subsequent fiscal year if, after giving effect thereto, no such Default under Section 7(a) shall have occurred and be continuing and (y) the payment of such deferred Management Fees in such subsequent fiscal year shall be disregarded in determining whether any other Management Fees may be paid in such subsequent fiscal year in accordance with the provisions of this clause (i), (ii) any pay fees and other transaction or series of transactions between expenses in connection with the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest Recapitalization in any of its Restricted Subsidiaries is owned by an Affiliate)aggregate amount not to exceed $18,000,000, and (iii) the payment of compensation (including, without limitation, reimburse any Affiliate 65 60 for amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees expended by such Affiliate in cash on behalf of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, Subsidiary and (biv) upon terms which would be obtainable by make the Company or a Restricted Subsidiary payments described in a comparable arm's-length transaction with a Person which is not an Affiliatesubsection 6.8(e).
Appears in 1 contract
Limitation on Transactions with Affiliates. The No Company shall notshall, and shall not directly or indirectly: enter into or permit any Restricted Subsidiary to, engage in to exist any transaction (including the purchase, sale, lease or exchange of any Property, the rendering of any service, or a merger or consolidation), with or for the benefit of any Affiliate upon (an "Affiliate Transaction") unless such Affiliate Transaction is (i) otherwise not prohibited under this Agreement and (ii) on fair and reasonable terms which would be any that are not less favorable to such Company than those that are reasonably obtainable by at the Company or a Restricted Subsidiary time in a comparable an arm's-length transaction with a Person which that is not such an Affiliate. The Company ; provided, however, that the following shall notbe permitted: (a) Dividend Payments permitted by Section 9.10; (b) fees and compensation paid to, and shall not permit any Restricted Subsidiary tocustomary indemnity and reimbursement provided on behalf of, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of any Company in the Company ordinary course of business; (c) loans, advances or extensions of credit to employees permitted by Section 9.09; (d) so long as no Event of Default shall have occurred and be continuing, transactions and agreements contemplated by any of its Restricted Subsidiaries, management agreements so long as the Board terms and conditions thereof are reasonably satisfactory to Administrative Agent; (e) transactions and agreements in existence on the Closing Date and listed in Schedule 9.15 (as such agreements were in effect on the Closing Date, the "Existing Affiliate Agreements") and the transactions pursuant to the Existing Affiliate Agreements and renewals and extensions of Directors such agreements and transactions after the Closing Date on substantially similar terms as the Existing Affiliate Agreements; (f) any employment agreements entered into by any Company in the ordinary course of business; (g) any purchase by any Permitted Holder of Equity Interests of Parent or any purchase by Parent of Equity Interests of Borrower or any contribution by Parent to the equity capital of Borrower, provided that any Equity Interests of Borrower purchased by Parent shall be pledged to Administrative Agent on behalf of the Lenders pursuant to the Security Documents; (h) transactions in which Parent delivers to Administrative Agent and the Lenders a letter from an independent financial advisor reasonably acceptable to Administrative Agent stating that such transaction is fair to such Company in good faith from a financial point of view; (i) so long as no Event of Default shall have approved the terms thereof occurred and deemed the services theretofore be continuing, payment of monitoring or thereafter to be performed for such compensation management or similar fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than payable to the Company Principal Investors and their Affiliates in an aggregate amount in any fiscal year of Parent not in excess of $1.0 million (plus reasonable expenses in connection therewith); (j) so long as no Event of Default shall have occurred and be continuing payments by Parent, Borrower or any of its Restricted Subsidiaries) their respective Subsidiaries to any Permitted Holder made for any financial advisory, financing, underwriting or placement services or in respect of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized other investment banking firm filed activities, including, in connection with the Trustee. Notwithstanding the foregoingacquisitions or divestitures, this provision shall not prohibit any such transaction which is determined payments are approved by the independent members a majority of the Board of Directors of the Company, Parent in their reasonable, good faith judgment faith; and (as evidenced by k) Affiliate Transactions (i) between or among Companies and (ii) between or among a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or Companies and any joint venture partner or Person in which such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or Companies own a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateMinority Interest (provided that no Affiliate of Parent, other than such Company or Companies, owns any Equity Interests in, or otherwise controls, such joint venture partner or Person).
Appears in 1 contract
Sources: Credit Agreement (Centennial Communications Corp /De)
Limitation on Transactions with Affiliates. The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary to, engage in directly or indirectly, enter into or suffer to exist any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactionstransactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) involving in the aggregate $1,000,000 or more with any Affiliate except for of the Borrower (other than the Borrower or a Wholly Owned Restricted Subsidiary) unless (i) such transaction or series of transactions is on terms that are no less favorable to the making of any Borrower or such Restricted PaymentSubsidiary, as the case may be, than would be available in a comparable transaction in arm’s length dealings with an unrelated third party, and (ii) (a) with respect to any transaction or series of transactions between involving aggregate payments in excess of $1,000,000, the Company Borrower delivers an Officers’ Certificate to the Administrative Agent certifying that such transaction or series of related transactions complies with clause (i) above and one such transaction or more series of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% related transactions has been approved by a majority of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the CompanyBorrower (and approved by a majority of the Independent Directors or, in their reasonablethe event there is only one Independent Director, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted SubsidiaryIndependent Director), and (b) upon terms which would be obtainable with respect to any transaction or series of transactions involving aggregate payments in excess of $5,000,000, an opinion as to the fairness to the Borrower or such Restricted Subsidiary from a financial point of view issued by an investment banking firm of national standing. Notwithstanding the foregoing, this provision will not apply to (i) employment agreements or compensation or employee benefit arrangements with any officer, director or employee of the Borrower entered into in the ordinary course of business (including customary benefits thereunder), (ii) any transaction entered into by or among the Borrower or one of its Wholly Owned Restricted Subsidiaries with one or more Wholly Owned Restricted Subsidiaries of the Borrower, and (iii) the national advertising representation agreements between the Borrower (or any of its Restricted Subsidiaries) and ▇▇▇▇ ▇▇▇▇▇, Inc. existing on the date hereof (and any renewals, extensions or replacements thereof, and any future such agreements with respect to television stations acquired by the Company Borrower or a its Restricted Subsidiary Subsidiaries after the date hereof, so long as such renewals, extensions, replacements or future agreements are on terms substantially similar to those of such existing agreements) and other transactions in a comparable arm's-length transaction with a Person which is not an Affiliateexistence on the date hereof.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe sale, purchase, exchange or lease of assets, property or services) for the personal services of officers, directors and employees with any Affiliate of the Company or any Restricted Subsidiary unless (i) such transaction or series of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the related transactions is on terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than are no less favorable to the Company or any of its such Restricted Subsidiaries) of an interest Subsidiary, as the case may be, than would reasonably be expected to be available in a Restricted Investmentcomparable transaction in arm’s-length dealings with an unrelated third party, and (ii) with respect to any transaction or series of related transactions involving aggregate payments in excess of $25.0 million, the Company delivers an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with Officers’ Certificate to the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any Trustee certifying that such transaction which is determined or series of related transactions complies with clause (i) above and such transaction or series of related transactions has been approved by a majority of the independent members of the Board of Directors of the Company (and approved by a majority of the Independent Directors or, in the event there is only one Independent Director, by such Independent Director).
(b) Notwithstanding the foregoing, this provision will not apply to (i) employment agreements or compensation or employee benefit arrangements or indemnification agreements or similar arrangements with any officer, director or employee of the Company (including benefits thereunder), (ii) any transaction entered into by or among the Company or any Restricted Subsidiary and one or more Restricted Subsidiaries, (iii) transactions pursuant to agreements existing on the Escrow Release Date and any amendment to or extensions or replacements thereof on terms not materially less favorable to the Company, (iv) Restricted Payments and Permitted Investments, (v) issuances of equity of the Company, (vi) transactions in their reasonablewhich the Company or any Restricted Subsidiary, good faith judgment (as evidenced by the case may be, delivers to the Trustee a Board Resolution filed with the Trustee) letter from an independent financial advisor stating that such transaction is fair to be (a) in the best interests of the Company or such Restricted SubsidiarySubsidiary from a financial point of view or meets the requirements of clause (i) of the preceding paragraph, and (bvii) upon terms which would be obtainable payments by the Company (and any Parent Entity) and its Restricted Subsidiaries pursuant to any tax sharing agreements among the Company (and any such Parent Entity) and its Restricted Subsidiaries to the extent constituting Permitted Tax Distributions, (viii) any customary transaction with a Securitization Subsidiary effected as part of a Qualified Securitization Financing or Receivables Facility and any disposition of Securitization Assets or related assets in connection with any Qualified Securitization Financing and any repurchase of Securitization Assets pursuant to a Securitization Repurchase Obligation, (ix) transactions entered into by a Restricted Subsidiary with an Affiliate prior to the day such Restricted Subsidiary is designated as a Restricted Subsidiary (so long as such transaction was not entered into in a comparable arm's-length contemplation of such redesignation) and (x) any transaction with a Person which is not an Affiliateor series of related transactions involving aggregate payments of $20.0 million or less.
Appears in 1 contract
Sources: Indenture (E.W. SCRIPPS Co)
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one with, or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officersbenefit of, directors and employees any Affiliate of the Company or any of its Restricted SubsidiariesSubsidiaries unless (a) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, so long as the case may be, than those that could have been obtained in an arm’s length transaction with a Person that is not an Affiliate of the Company or its Restricted Subsidiaries and (b) either (i) with respect to any transaction or series of related transactions involving aggregate payments in excess of US$2,500,000, but less than US$10,000,000, the Company delivers to the Trustee a resolution of the Board of Directors of the Company set forth in good faith shall an Officers’ Certificate certifying that such transaction or series of related transactions comply with clause (a) above and that such transaction or transactions have been approved by the terms thereof and deemed Board of Directors (including a majority of the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to Disinterested Directors) of the Company or any (ii) with respect to a transaction or series of its Restricted Subsidiariesrelated transactions involving aggregate payments equal to or greater than US$10,000,000, the Company delivers to the Trustee (x) an Officers’ Certificate certifying that such transaction or series of related transactions have been approved by the Board of Directors (including a majority of the Disinterested Directors) of an interest in the Company and (y) a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an written opinion of from a nationally recognized investment banking firm filed with to the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any effect that such transaction which is determined by the independent members or series of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) related transactions are fair to be (a) in the best interests of the Company or such Restricted SubsidiarySubsidiary from a financial point of view. The foregoing covenant shall not restrict any of the following:
(A) transactions exclusively among the Company and/or its Restricted Subsidiaries provided such transactions are not otherwise prohibited under this Indenture;
(B) the Company from paying reasonable and customary regular compensation or fees to, or executing customary expense reimbursement, indemnification or similar arrangements with, directors or executive officers of the Company or any Restricted Subsidiary made in the ordinary course of business;
(C) transactions permitted by the provisions of Section 10.11;
(D) the issuance of the Mirror Note, the guarantees of the Mirror Note and transactions permitted by Section 10.21 and Section 10.22;
(bE) upon terms which would be obtainable transactions in connection with the Reorganization; and
(F) the incurrence by the Company or a any Restricted Subsidiary in a comparable arm'sof Deeply Subordinated Inter-length transaction with a Person which is not an Affiliatecompany Debt.
Appears in 1 contract
Sources: Indenture (Baytex Energy LTD)
Limitation on Transactions with Affiliates. The Company shall not(a) Enter into any ------------------------------------------ transaction, and shall not permit including, without limitation, any Restricted Subsidiary topurchase, engage in sale, lease or exchange of property or the rendering of any transaction service, with any Affiliate unless such transaction is (i) otherwise permitted under this Agreement, (ii) in the ordinary course of the Borrower's or such Restricted Subsidiary's business and (iii) upon terms which would be any fair and not materially less favorable terms to the Borrower or such Restricted Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it reasonably believes it would obtain in a comparable arm's-arm's length transaction with a Person which is not an Affiliate. The Company ; provided that satisfaction of the foregoing clause (iii) shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in be demonstrated to the aggregate $1,000,000 or more with any Affiliate except for Administrative Agent (i) in a certificate of a Responsible Officer of the making Borrower or such Restricted Subsidiary if the fair market value of any the property or service purchased, sold, leased or exchanged by the Borrower or such Restricted Payment, Subsidiary is no greater than $10,000,000 (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members resolution of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company Borrower or such Restricted SubsidiarySubsidiary if the fair market value of the property or service purchased, and (b) upon terms which would be obtainable sold, leased or exchanged by the Company Borrower or such Restricted Subsidiary is greater than $10,000,000 but no greater than $25,000,000 or (iii) at the Borrower's expense in an opinion of an independent valuation firm selected by the Administrative Agent and reasonably acceptable to the Borrower if the fair market value of the property or service purchased, sold, leased or exchanged by the Borrower or such Restricted Subsidiary is greater than $25,000,000; provided, however, that the provisions of the immediately preceding proviso of this subsection 7.11 shall not apply with respect to the pledge by the Borrower of the Capital Stock of any Citizens Entity to ▇▇▇▇▇▇ Brothers Holding Inc. to secure Guarantee Obligations issued by ▇▇▇▇▇▇ Brothers Holding Inc. in favor of any Person to support the Citizens Entities' "trading book". Notwithstanding the foregoing, any such transaction which is determined to be materially less favorable to the Borrower or a Restricted Subsidiary than the Borrower or such Restricted Subsidiary reasonably believes it would obtain in a comparable arm's-arm's length transaction nevertheless shall be permitted if the excess consideration being paid to such Affiliate would otherwise be permitted at such time as an Investment in such Affiliate under subsection 7.9 and, upon consummation of such transaction, such excess consideration being paid to such Affiliate shall constitute an Investment for the purposes of calculating compliance with a Person which is not an Affiliate.subsection 7.9;
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate upon terms which would be any less favorable of the Company (other than those obtainable by the Company or a Wholly Owned Restricted Subsidiary Subsidiary) unless (a) such transaction or series of transactions is in writing and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable arm'stransaction in arm’s-length transaction dealings with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Paymentunrelated third party, (iib) with respect to any transaction or series of transactions between involving aggregate payments in excess of $20,000,000, the Company delivers an Officers’ Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (a) above and one such transaction or more series of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% related transactions has been approved by a majority of the equity interest in any members of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company (and approved by a majority of Independent Directors or, in good faith shall have approved the terms thereof event there is only one Independent Director, by such Independent Director) and deemed the services theretofore (c) with respect to any transaction or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Saleseries of transactions involving aggregate payments in excess of $25,000,000, or a sale, transfer or other disposition (other than an opinion to the Company or any such Restricted Subsidiary from an independent investment banking, accounting or appraisal firm of its Restricted Subsidiaries) nationally recognized standing that the terms of an interest such transaction are not materially less favorable than those that might reasonably have been obtained in a Restricted Investment, involving comparable transaction at such time on an amount greater than $25,000,000, such Asset Sale or transfer of interest in arm’s-length basis from a Restricted Investment Person that is for fair value as determined by not an opinion of a nationally recognized investment banking firm filed with the TrusteeAffiliate. Notwithstanding the foregoing, this provision shall not prohibit apply to (A) any such transaction which is determined with an officer or director of the Company or Parent entered into in the ordinary course of business (including compensation or employee benefit arrangements with any officer or director of the Company or Parent), (B) any transaction entered into by the independent members Company or one of the Board of Directors its Wholly Owned Restricted Subsidiaries with a Wholly Owned Restricted Subsidiary of the Company, (C) transactions in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with existence on the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, Issue Date and (bD) upon terms which would be obtainable any Restricted Payment permitted by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateSection 1009.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including, without limitation, any Restricted Subsidiary topurchase, engage in sale, lease or exchange of Property, the rendering of any transaction service or the payment of any management, advisory or similar fees, with any Affiliate (other than any Credit Party or any Subsidiary Guarantor) unless such transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary course of business of Holdings, the Borrower, or such Subsidiary, as the case may be, and (c) upon fair and reasonable terms which would be any no less favorable to Holdings, the Borrower, or such Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-arm’s length transaction with a Person which that is not an Affiliate. The Company shall notNotwithstanding the foregoing, and shall not permit any Restricted Subsidiary toso long as no Default or Event of Default is continuing, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment[reserved], (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate)Restructuring Transactions shall be permitted, and (iii) Holdings, the payment Borrower and their respective Subsidiaries may pay customary fees to, and the reasonable out-of-pocket expenses of, their respective Boards of compensation Directors and may provide customary indemnities for the benefit of members of their respective Board of Directors, (iv) [Reserved], (v) transactions with Subsidiaries that are not Subsidiary Guarantors, joint venture partners or purchasers or sellers of goods or services shall be permitted, in each case in the ordinary course of business (including, without limitation, amounts paid pursuant to employee benefit plansjoint venture agreements) for and otherwise in compliance with the personal services of officers, directors and employees terms of the Company Loan Documents which are fair to the Borrower or any of its Restricted Subsidiaries, so long as in the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members determination of the Board of Directors of the CompanyBorrower, in their reasonableor the senior management thereof, good faith judgment or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, (as evidenced vi) any employment agreement entered into by a Board Resolution filed with the Trustee) to be (a) Holdings or any of its Subsidiaries or employee compensation payments in the best interests ordinary course of the Company business and consistent with past practices of Holdings or such Subsidiary shall be permitted, (vii) Restricted SubsidiaryPayments that are permitted by the provisions of Section 11.6 shall be permitted, (viii) transfers of Inventory from the Borrower or a Subsidiary thereof to a Subsidiary operating in a different jurisdiction in exchange for value not less than the cost of producing such Inventory and not more than the value at which such Subsidiary expects to Dispose of such Inventory shall be permitted and (bix) upon terms which would the exchange of Exchangeable Shares shall be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatepermitted.
Appears in 1 contract
Sources: Credit Agreement (SMTC Corp)
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any Restricted Subsidiary of the Company to, engage in directly or indirectly, enter into any transaction (including without limitation the purchase, sale, lease or exchange of any property or the rendering of any service) with any a Person that, immediately prior to such transaction, was an Affiliate upon (an "Affiliate Transaction"), unless such transaction is on terms which would be any no less favorable than those obtainable by to the Company or a such Restricted Subsidiary than those that could be obtained in a comparable arm's-arms' length transaction with a Person which an entity that is not an Affiliate; provided that continued performance under agreements as in effect on the Initial Issuance Date and described in the Offering Memorandum, or consummation, on the terms described in the Offering Memorandum, of transactions described therein that are not consummated prior to the Initial Issuance Date (and renewals and extensions of such agreements and transactions on terms not materially less favorable to the Holders than the terms of such original agreements and transactions), shall not be subject to such limitation. The In addition, the Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries of the Company to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for enter into (i) an Affiliate Transaction involving or having an expected value of more than $2 million unless such transaction shall have been approved in good faith by resolution of the making Board of any Restricted Payment, Directors and such resolution provides that such Affiliate Transaction complies with the requirements of this Section 4.11 or (ii) any an Affiliate Transaction involving or having an expected value of more than $15 million, unless the Company has received an opinion of a nationally recognized independent investment banking firm, accounting firm, appraisal firm or other experts of nationally recognized standing if, in each case, such firm is regularly engaged to render opinions of such type, to the effect that the transaction or series is fair to the Company (or, if the Company is not a party to such Affiliate Transaction, then to such Restricted Subsidiary) from a financial point of view. Notwithstanding anything to the contrary contained in this Indenture, the foregoing provisions shall not apply to (i) transactions between the Company and one or more a Wholly Owned Subsidiary of its the Company that is a Restricted Subsidiaries Subsidiary or between two or more of its Restricted Wholly Owned Subsidiaries (provided that no more than 5% of the equity interest in Company that are Restricted Subsidiaries, (ii) payments required to be made to the Company or a Restricted Subsidiary by a Subsidiary under any of its Restricted Subsidiaries is owned by an Affiliate)subsidiary management agreement, and as the case may be, (iii) the payment of compensation (including, without limitation, amounts paid payments pursuant to employee benefit plansany tax sharing agreement or arrangement among the Company and its Subsidiaries, (iv) for the personal services of officerstransactions with any current or former employee, directors and employees officer or director of the Company or any of its Restricted Subsidiaries, so long as Subsidiaries pursuant to reasonable employee benefit plans or compensation arrangements or agreements entered into in the Board ordinary course of Directors of business on or prior to the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset SaleStart Date, or a sale, transfer amended or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed created thereafter with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members approval of the Board of Directors of the CompanyDirectors, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed v) transactions with the Trustee) to be (a) in the best interests any employee of the Company or such Restricted Subsidiary, and (b) upon terms pursuant to which would be obtainable by the Company purchases or otherwise acquires Capital Stock of the Company from such employee as permitted under Section 4.7, or (vi) transactions constituting (A) a Restricted Subsidiary in Payment not prohibited by Section 4.7 and not constituting a comparable arm's-length transaction with Permitted Investment, or (B) an investment not constituting an "Investment" by reason of a Person which is not an Affiliatespecific exclusion from such definition.
Appears in 1 contract
Sources: Indenture (Cinemark Usa Inc /Tx)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe sale, purchase, exchange or lease of assets, property or services) for the personal services of officers, directors and employees with any Affiliate of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition Subsidiary unless (other than to the Company or any of its Restricted Subsidiariesi) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which or series of related transactions is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) on terms that are not materially less favorable to be (a) in the best interests of the Company or such Restricted Subsidiary, as the case may be, than would reasonably be expected to be available in a comparable transaction in arm’s-length dealings with an unrelated third party, and (ii) with respect to any transaction or series of related transactions involving aggregate payments in excess of $50.0 million, the Company delivers an Officers’ Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (i) above and such transaction or series of related transactions has been approved by a majority of the members of the Board of Directors (and approved by a majority of the Independent Directors or, in the event there is only one Independent Director, by such Independent Director).
(b) upon Notwithstanding the foregoing, this provision will not apply to (i) employment agreements or compensation or employee benefit arrangements or indemnification agreements or similar arrangements with any officer, director or employee of the Company (including benefits thereunder), (ii) any transaction entered into by or among the Company or any Restricted Subsidiary and one or more Restricted Subsidiaries, (iii) transactions pursuant to agreements existing on the Escrow Release Date and any amendment to or extensions or replacements thereof on terms not materially less favorable to the Company, (iv) Restricted Payments and Permitted Investments, (v) issuances of equity of the Company, (vi) transactions in which would be obtainable the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an independent financial advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (i) of the preceding paragraph, (vii) payments by the Company (and any Parent Entity) and its Restricted Subsidiaries pursuant to any tax sharing agreements among the Company (and any such Parent Entity) and its Restricted Subsidiaries to the extent constituting Permitted Tax Distributions, (viii) any customary transaction with a Securitization Subsidiary effected as part of a Qualified Securitization Financing or Receivables Facility and any disposition of Securitization Assets or related assets in connection with any Qualified Securitization Financing and any repurchase of Securitization Assets pursuant to a Securitization Repurchase Obligation, (ix) transactions entered into by a Restricted Subsidiary with an Affiliate prior to the day such Restricted Subsidiary is designated as a Restricted Subsidiary (so long as such transaction was not entered into in a comparable arm's-length contemplation of such redesignation) and (x) any transaction with a Person which is not an Affiliateor series of related transactions involving aggregate payments of $25.0 million or less.
Appears in 1 contract
Sources: Indenture (Gray Television Inc)
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary of its Subsidiaries to, engage in directly or indirectly, enter into or permit to exist any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe purchase, sale, lease or exchange of any property or the rendering of any service) with or for the personal services of officersbenefit of, directors and employees an Affiliate of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors Subsidiary of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than transactions between the Company and a wholly-owned Subsidiary of the Company or between wholly-owned Subsidiaries of the Company) (an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under (b) below and (y) Affiliate Transactions (including lease transactions) on terms that are no less favorable to the Company or any of its Restricted Subsidiaries) of an interest the relevant Subsidiary in the aggregate than those that might reasonably have been obtained in a Restricted Investment, involving comparable transaction by the Company or such Subsidiary on an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value arm's-length basis (as determined in good faith by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with Resolution) from a person that is not an Affiliate; provided that except as otherwise provided by (b) below, neither the Trustee) to be (a) in the best interests Company nor any of its Subsidiaries shall enter into an Affiliate Transaction or series of related Affiliate Transactions involving or having a value of more than $5.0 million unless the Company or such Restricted Subsidiary, as the case may be, has received an opinion from an Independent Financial Advisor, with a copy thereof to the Trustee, to the effect that the financial terms of such Affiliate Transaction are fair and (b) upon terms which would be obtainable by reasonable to the Company or a Restricted Subsidiary such Subsidiary, as the case may be, and such terms are no less favorable to the Company or such Subsidiary, as the case may be, than those that could be obtained in a comparable transaction on an arm's-length transaction basis with a Person which person that is not an Affiliate.
(b) The foregoing provisions shall not apply to (i) any Restricted Payment that is made in compliance with Section 4.03, (ii) the payment by the Company or any of its Subsidiaries of a management fee to Renco in an amount not to exceed $100,000 in any month and any other amounts payable under the Management Consultant Agreement as in effect on the Issue Date and (iii) reasonable and customary regular fees to directors of the Company who are not employees of the Company.
Appears in 1 contract
Sources: Indenture (Wci Steel Inc)
Limitation on Transactions with Affiliates. The Company shall not, and the Company shall not permit permit, cause or suffer any Restricted Subsidiary to, engage in conduct any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company business or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) enter into any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe sale, transfer, disposition, purchase, exchange, lease or use of assets, property or services) or enter into any contract, agreement, understanding, loan, advance or guarantee with or for the personal services benefit of officersany of their respective Affiliates, directors including, without limitation, any Unrestricted Subsidiary, other than the Company or another Restricted Subsidiary (each, an "Affiliate Transaction"), except
(a) such transactions that are set forth in writing and employees are entered into in good faith and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable transaction on an arm's-length basis from a Person not an Affiliate of the Company or any such Restricted Subsidiary or, if in the reasonable opinion of its Restricted Subsidiaries, so long as the Board of Directors a majority of the Company in good faith shall have approved Independent directors of the terms thereof and deemed Company, such standard is inapplicable to the services theretofore or thereafter to be performed for subject Affiliate Transaction, then that such compensation or fees to be Affiliate Transaction is fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any the Restricted Subsidiary, as the case may be (or to the stockholders as a group in the case of a pro rata dividend or other distribution to stockholders permitted pursuant to Section 10.12), from a financial point of view,
(b) such transactions that are existing on the Issue Date, and
(c) reasonable and customary compensation and indemnification of directors, officers and employees. In addition, the Company and its Restricted Subsidiaries) Subsidiaries may not enter into any Affiliate Transaction (or series of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion related Affiliate Transactions that are part of a nationally recognized investment banking firm filed with common plan) under clause (a) above involving aggregate payments or other Fair Market Value
(a) in excess of $5.0 million unless, prior to the Trustee. Notwithstanding consummation thereof, the foregoing, this provision shall not prohibit any such transaction which is determined approved by the independent members of the Board of Directors of the Company, in their reasonableincluding a majority of the disinterested directors, good faith judgment (as such approval to be evidenced by a Board Resolution filed delivered to the Trustee with the Trustee) to be an Officers' Certificate stating that such Board of Directors has determined that Affiliate Transaction complies with clause (a) above, and
(b) in excess of $15.0 million unless, prior to the consummation thereof, the Company shall have received an opinion, from an independent nationally recognized firm experienced in the best interests appraisal or similar review of similar types of transactions, that such transaction or series of related transactions is on terms which are fair, from a financial point of view, to the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall not, and shall not cause or permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company business or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) enter into any transaction or series of related transactions with or for the benefit of any Affiliate, any holder of 5% or more of any class of Equity Interests or any officer, director or employee of the Company or any Restricted Subsidiary (each, an "Affiliate Transaction"), unless such Affiliate Transaction is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than could reasonably be obtained at such time in a comparable transaction with an unaffiliated third party. For any such transaction that involves value in excess of $5.0 million, the Company shall deliver to the Trustee an Officers' Certificate stating that a majority of the Disinterested Directors has determined that the transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution delivered to the Trustee. For any such transaction that involves value in excess of $20.0 million, the Company shall also obtain a written opinion from an Independent Financial Advisor to the effect that such transaction is fair, from a financial point of view, to the Company or such Restricted Subsidiary, as the case may be. Notwithstanding the foregoing, the restrictions set forth in this covenant shall not apply to (i) transactions between or among the Company and one or more of its Restricted Subsidiaries or between two or more of its among Restricted Subsidiaries Subsidiaries; (provided that no more than 5% ii) customary directors' fees, indemnification and similar arrangements, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the equity interest Company or any Restricted Subsidiary entered into in any the ordinary course of its Restricted Subsidiaries is owned by an Affiliatebusiness (including customary benefits thereunder), and ; (iii) the payment of compensation (including, without limitation, amounts paid transactions pursuant to employee benefit plansagreements or arrangements in effect on the Issue Date, as such agreements or arrangements are in effect on the Issue Date or as thereafter amended or supplemented in a manner not adverse to the Holders; (iv) for the personal services of loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof business and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration thereforconsistent with past business practices; and provided further that for (v) any Asset Sale, or a sale, transfer or other disposition (other than to transactions between the Company or any Restricted Subsidiary, on the one hand, and any Affiliate of its Restricted Subsidiaries) of an interest the Company engaged primarily in a Restricted InvestmentTelecommunications Business, involving an amount greater than $25,000,000on the other hand, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (ax) in the best interests ordinary course of business and consistent with commercially reasonable practices or (y) approved by a majority of the Disinterested Directors; (vi) any payment pursuant to any tax sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes; provided, however, that such payment is not greater than that which the Company would be required to pay as a stand-alone taxpayer; (vii) the pledge of Equity Interests of Unrestricted Subsidiaries to support the Indebtedness thereof; (viii) Restricted Subsidiary, Payments permitted under Section 4.11; and (bix) upon terms which would be obtainable the issuance and sale by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatefor cash of Qualified Equity Interests.
Appears in 1 contract
Limitation on Transactions with Affiliates. (i) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, enter into or suffer to exist any contract, agreement, arrangement or transaction with with, or for the benefit of, any of its Affiliates (an “Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactionsTransaction”) involving in the aggregate $1,000,000 or more with any Affiliate except for unless (i) the making Company’s Board of any Directors determines that such Affiliate Transaction is on terms that are fair and reasonable to the Company or such Restricted PaymentSubsidiary, as the case may be, and are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could have been obtained in an arm’s length transaction with third parties who are not Affiliates, and (ii) with respect to any transaction Affiliate Transaction involving aggregate payments in excess of $5,000,000, the Company delivers an officers’ certificate to the Agent certifying that such Affiliate Transaction complies with clause (i) above and has been approved by the Board of Directors of the Company.
(ii) The restrictions set forth in Section 8.2(g)(i) shall not apply to:
(A) reasonable fees and compensation paid to and indemnity provided on behalf of officers, directors, employees or series consultants of the Company or any of its Restricted Subsidiaries as determined in good faith by the Company’s Board of Directors or senior management;
(B) transactions exclusively between or among the Company and one or more any of its Restricted Subsidiaries or exclusively between two or more of its among such Restricted Subsidiaries Subsidiaries;
(provided that no more than 5% C) any agreement as in effect as of the equity interest Purchase Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto and any extension of the maturity thereof) and any replacement agreement thereto so long as any such amendment or replacement agreement is not materially more disadvantageous to the holders of the Notes, in any material respect than the original agreement as in effect on the Purchase Date;
(D) Restricted Payments permitted by this Agreement;
(E) any employment, stock option, stock repurchase, employee benefit compensation, business expense reimbursement, severance, termination or other employment-related agreements, arrangements or plans entered into by the Company or any of its Restricted Subsidiaries is owned by an Affiliate)in the ordinary course of business;
(F) transactions relating to the issuance of Qualified Capital Stock of, and (iii) the payment of compensation (includingor any other equity investment in, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as including the Board granting of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration thereforregistration rights with respect thereto;
(G) Permitted Investments; and provided further that for and
(H) any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm'son arm’s-length transaction terms with a Person which is not non-Affiliate that becomes an AffiliateAffiliate as a result of such transaction.
Appears in 1 contract
Sources: Note Purchase Agreement (Vanguard Car Rental Group Inc.)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including, without limitation, any Restricted Subsidiary topurchase, engage in sale, lease or exchange of property or the rendering of any transaction service, with any Affiliate (other than transactions between or among the Borrower and the Wholly-Owned Subsidiaries) unless such transaction is (a) not prohibited by another provision of this Agreement, (b) in the ordinary course of the Borrower's or the applicable Subsidiary's business and (c) upon fair and reasonable terms which would be any no less favorable to the Borrower or the applicable Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-arm's length transaction with a Person which is not an AffiliateAffiliate or, in the event no comparable transaction with an unaffiliated Person is available, on terms that are fair from a financial point of view to the Borrower or the applicable Subsidiary. The Company shall notNotwithstanding the foregoing, and the following transactions shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for be deemed to violate this Section 8.10: (i) payments made, or contracts, agreements or understandings entered into, in connection with the making Acquisition, which payments, contracts, agreements or understandings are listed on Schedule 8.10 (including pursuant to any amendment thereto or replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Lenders in any material respect than the agreement in effect on the date of any Restricted Payment, this Agreement); (ii) any transaction or series the purchase, redemption, acquisition of transactions between the Company retirement of Capital Stock pursuant to Section 8.7(b) and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliatec), and ; (iii) transactions between or among the payment Borrower and/or its Wholly-Owned Subsidiaries, (iv) Restricted Payments permitted by Section 8.7 and Investments that are permitted by the provisions of compensation Section 8.8; (including, without limitation, amounts paid pursuant v) indemnification payments made to employee benefit plans) for the personal services of officers, directors and employees of the Company Borrower or its Subsidiaries pursuant to charter, by-law, statutory or contractual provisions; and (vi) reasonable fees and compensation in the ordinary course of business paid to (including issuances and grant of securities and stock options), and employment agreements and stock option and ownership plans for the benefit of, officers, directors or employees of the Borrower or any of its Restricted Subsidiaries, so long as the Board of Directors Subsidiary of the Company Borrower as determined in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Borrower's Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateDirectors.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall Issuer will not, and shall will not permit any of the Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in , contract, agreement, loan, advance or guarantee with, or for the aggregate $1,000,000 or more with benefit of, any Affiliate except for of the Issuer (each of the foregoing, an “Affiliate Transaction”), unless:
(i) such Affiliate Transaction is on terms that are not materially less favorable to the making of any Issuer, taken as a whole, or the relevant Restricted Payment, Subsidiary than those that could reasonably have been obtained in a comparable arm’s-length transaction by the Issuer or such Restricted Subsidiary with an unaffiliated party; and
(ii) with respect to any transaction Affiliate Transaction or series of transactions between related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, the Company and one or more Issuer delivers to the Trustee a Board Resolution adopted in good faith by the majority of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company Issuer approving such Affiliate Transaction and set forth in good faith shall have approved the terms thereof an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) above. The foregoing limitation does not limit, and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined apply to:
(1) Restricted Payments that are permitted by the independent provisions of this Indenture pursuant to Section 4.7 or Permitted Investments;
(2) the payment of reasonable and customary fees and indemnities to members of the Board of Directors of the CompanyIssuer or a Restricted Subsidiary;
(3) the payment (and any agreement, plan or arrangement relating thereto) of reasonable and customary compensation and other benefits (including retirement, health, option, deferred compensation and other benefit plans) and indemnities to officers and employees of the Issuer or any Restricted Subsidiary;
(4) transactions between or among the Issuer and/or the Restricted Subsidiaries;
(5) the issuance of Capital Interests (other than Redeemable Capital Interests) of the Issuer otherwise permitted hereunder and the granting of registration and other customary rights in their reasonableconnection therewith;
(6) any agreement or arrangement as in effect on the Issue Date and any amendment, extension or modification thereto so long as such amendment, extension or modification is not more disadvantageous to the Holders of the Notes in any material respect;
(7) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into the Issuer or a Restricted Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition or merger, or any amendment thereto (so long as any such amendment is not disadvantageous to the Holders in the good faith judgment of the board of directors of the Issuer when taken as a whole as compared to the applicable agreement as in effect on the date of such acquisition or merger);
(8) transactions in which the Issuer delivers to the Trustee a written opinion from a nationally recognized investment banking, accounting or appraisal firm to the effect that the transaction is fair, from a financial point of view, to the Issuer and any relevant Restricted Subsidiaries;
(9) any contribution of capital to the Issuer;
(10) the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of its obligations under the terms of, any stockholders agreement (including any registration rights agreement) to which it is a party as evidenced of the Issue Date and any similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by the Issuer or any of its Restricted Subsidiaries of obligations under, any future amendment to any such existing agreement or any similar agreement entered into after the Issue Date shall only be permitted by this clause (10) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous in any material respect to the Holders when taken as a Board Resolution filed whole as compared to the original agreement in effect on the Issue Date;
(11) transactions with Burger King Corporation and Popeyes Louisiana Kitchen, Inc. in the ordinary course of business and otherwise in compliance with the Trustee) to be (a) terms of this Indenture which, in the best interests good faith determination of the Company Issuer, are fair to the Issuer and its Restricted Subsidiaries or are on terms at least as favorable as might reasonably have been obtained at such Restricted Subsidiary, time from an unaffiliated party; and
(12) the payment of all fees and (b) upon terms which would be obtainable by expenses related to the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateTransactions.
Appears in 1 contract
Limitation on Transactions with Affiliates. (1) The Company shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not enter into or permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the personal services benefit of, any of its Affiliates (each an "Affiliate Transaction"), other than (x) Permitted Affiliate Transactions and (y) Affiliate Transactions on terms that are no less favorable to the Company or such Subsidiary than those that
(2) The restrictions set forth in paragraph (1) of this Section 4.11 shall not apply to (each of the following actions set forth in clauses (i), (ii), (iii), (iv) and (v) being referred to as a "Permitted Affiliate Transaction"): (i) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors and employees directors, employees, consultants or agents of the Company or any Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (ii) transactions between or among the Company and any of its Restricted Subsidiaries, Wholly Owned Subsidiaries or between or among such Wholly Owned Subsidiaries provided such transactions are not otherwise prohibited under this Supplemental Indenture; (iii) any agreement as in effect as of the Base Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) or in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Board of Directors of Holders in any material respect than the Company original agreement as in good faith shall have approved effect on the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration thereforBase Date; (iv) Restricted Payments permitted by this Supplemental Indenture; and provided further that for any Asset Sale, (v) transactions between or a sale, transfer or other disposition (other than to among the Company or any Subsidiaries of its Restricted Subsidiaries) of an interest the Company and the Land Partnership, provided such transactions are permitted by and are effected in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed accordance with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members terms of the Board of Directors Partnership Agreement of the Land Partnership and the By-laws of Company, in their reasonableeach case, good faith judgment (as evidenced by a Board Resolution filed with in effect on the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an AffiliateBase Date.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including any Restricted Subsidiary topurchase, engage in sale, lease or exchange of property or the rendering of any transaction service, with any Affiliate unless such transaction is (a) otherwise permitted under this Agreement, and (b) upon terms which would be any no less favorable to the Parent Borrower or such Restricted Subsidiary, as the case may be, than those obtainable by the Company or a Restricted Subsidiary it would obtain in a comparable arm's-arm’s length transaction with a Person which is not an Affiliate. The Company ; provided that nothing contained in this Section 8.11 shall not, and shall not permit be deemed to prohibit:
(a) the Parent Borrower or any Restricted Subsidiary tofrom entering into or performing any consulting, engage in any transaction (management or series of related transactions) involving in the aggregate $1,000,000 employment agreements or more other compensation arrangements with any Affiliate except for current or former director, officer, employee or consultants of or to the Parent Borrower or any Subsidiaries or any Parent Entity that (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned approved by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company Parent Borrower or any Parent Entity (including the compensation committee thereof), (ii) provides for annual base compensation not in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed excess of $2,000,000 for such compensation director, officer, employee or fees consultant or (iii) is entered into in the ordinary course of business;
(b) [reserved];
(c) the payment of transaction expenses in connection with this Agreement;
(d) the Parent Borrower or any Restricted Subsidiary from entering into, making payments pursuant to be fair consideration therefor; and provided further that for otherwise performing an indemnification and contribution agreement in favor of any Asset SalePermitted Holder and each person who was, is or becomes a saledirector, transfer officer, agent, employee or other disposition (other than consultant of or to the Company Parent Borrower or any of its Restricted SubsidiariesSubsidiaries or any Parent Entity, in respect of liabilities (A) arising under the Securities Act, the Exchange Act and any other applicable securities laws or otherwise, in connection with any offering of an securities by any Parent Entity (provided that, if such Parent Entity shall own any material assets other than the Capital Stock of Holdings or another Parent Entity, or other assets relating to the ownership interest of such Parent Entity in a Restricted Investment, involving an amount greater than $25,000,000Holdings or another Parent Entity, such Asset Sale or transfer of interest in a Restricted Investment is for fair value liabilities shall be limited to the reasonable and proportional share, as determined by an opinion the Parent Borrower in its reasonable discretion, of such liabilities relating or allocable to the ownership interest of such Parent Entity in Holdings or another Parent Entity and such other related assets) or Holdings or any of its Subsidiaries, (B) incurred to third parties for any action or failure to act of the Parent Borrower or any of its Subsidiaries, predecessors or successors, (C) arising out of the fact that any indemnitee was or is a nationally recognized investment banking firm filed director, officer, agent, employee or consultant of or to the Parent Borrower or any of its Subsidiaries or Holdings or any Parent Entity, or is or was serving at the request of any such corporation as a director, officer, employee, agent or consultant of or to another corporation, partnership, joint venture, trust or enterprise or (D) to the fullest extent permitted by Delaware or other applicable state law, arising out of any breach or alleged breach by such indemnitee of his or her fiduciary duty as a director or officer of the Parent Borrower or any of its Subsidiaries;
(e) the Parent Borrower or any Restricted Subsidiary from performing any agreements or commitments with or to any Affiliate existing on the Closing Date and described in Schedule 8.11(e);
(f) any transaction permitted under Section 8.4(b), Section 8.4(d), Section 8.4(f), Section 8.5, Section 8.7, Section 8.9(e), Section 8.9(f) or Section 8.9(n), any transaction with the Trustee. Notwithstanding Parent Borrower or any Subsidiary of the foregoingParent Borrower, this provision shall not prohibit any such transaction which is determined with a Special Purpose Entity, and any transaction in the ordinary course of business, or approved by the independent members a majority of the Board of Directors of any Parent Entity, Holdings, the CompanyParent Borrower or such Subsidiary, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests an Affiliate of the Company Parent Borrower controlled by the Parent Borrower that is a Franchisee, a Franchise Special Purpose Entity, a joint venture or such similar entity;
(g) the Parent Borrower or any Restricted SubsidiarySubsidiary from performing its obligations under the Tax Sharing Agreement or any other Transaction Agreement; and
(h) the Transactions, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateall transactions relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Herc Holdings Inc)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, including, without limitation, any purchase, sale, lease or exchange of Property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than the Borrower or any Restricted Subsidiary) unless such transaction is (a) otherwise not prohibited by this Agreement, (b) in the ordinary course of business of the Borrower or such Restricted Subsidiary, as the case may be, and (c) upon fair and reasonable terms no less favorable to the Borrower or such Restricted Subsidiary, as the case may be, than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate. Notwithstanding the foregoing, (i) so long as no Specified Event of Default has occurred and is continuing, the Borrower and its Restricted Subsidiaries may pay fees and expenses to the Sponsor and its Control Investment Affiliates pursuant to the Management Agreement as in effect on the date hereof; provided that fees for the Investment Banking Services (as defined in the Management Agreement) may not exceed 1.0% of the total transaction value of the transaction giving rise to such Investment Banking Services, (ii) the Borrower and its Restricted Subsidiaries may enter into any transaction with an Affiliate that is not prohibited by the terms of this Agreement to be entered into by the Borrower or such Restricted Subsidiary with an Affiliate and (iii) without being subject to the terms of this Section 7.10, enter into any transaction with any Person which is an Affiliate of Superholdings only by reason of such Person and Superholdings having common directors. For the avoidance of doubt, this Section 7.10 shall not permit apply to employment, bonus, retention and severance arrangements with, and payments of compensation or benefits to or for the benefit of, current or former employees, consultants, officers or directors of the Borrower or any of its Restricted Subsidiary toSubsidiaries in the ordinary course of business. For purposes of this Section 7.10, engage in any transaction with any Affiliate upon terms which would shall be any less favorable than those obtainable by deemed to have satisfied the Company or a Restricted Subsidiary standard set forth in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction clause (or series of related transactionsb) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries first sentence hereof if such transaction is owned approved by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees a majority of the Company or any of its Restricted Subsidiaries, so long as the Board of Disinterested Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any board of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members directors of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company Borrower or such Restricted Subsidiary, as applicable. “Disinterested Director” shall mean, with respect to any Person and (b) upon terms which would be obtainable by transaction, a member of the Company board of directors of such Person who does not have any material direct or a Restricted Subsidiary indirect financial interest in a comparable arm's-length transaction or with a Person which is not an Affiliaterespect to such transaction.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, conduct any business or enter into or suffer to exist any transaction with or series of transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of any Property or the rendering of any service) with, or for the benefit of, any Affiliate upon of the Company (an "Affiliate Transaction"), unless:
(1) the terms which would be any less favorable than those obtainable by of such Affiliate Transaction are
(A) fair and reasonable to the Company or a such Restricted Subsidiary Subsidiary, as the case may be, and
(B) no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable arm's-length transaction with a Person which that is not an Affiliate. The Affiliate of the Company;
(2) if such Affiliate Transaction involves aggregate payments or value in excess of $1.0 million, the Company shall notobtains and promptly delivers to the Trustee a resolution of its Board of Directors (including a majority of the disinterested members of the Board of Directors) approving such Affiliate Transaction and certifying that, in its good faith judgment, such Affiliate Transaction complies with clauses (a)(1)(A) and shall not permit (a)(1)(B) above; and
(3) if such Affiliate Transaction involves aggregate payments or value in excess of $5.0 million, the Company obtains a written opinion from an Independent Financial Advisor that the transaction is fair to the Company and the Restricted Subsidiaries.
(b) Without regard to the foregoing limitations, the Company or any Restricted Subsidiary to, engage in any transaction may enter into or suffer to exist the following:
(or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii1) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (in the ordinary course of business; provided that no more than 5% of the equity interest in total voting power of the Voting Stock (on a fully diluted basis) of any of its such Restricted Subsidiaries Subsidiary is owned by an AffiliateAffiliate of the Company (other than a Restricted Subsidiary), and ;
(iii2) the payment of compensation (including, without limitation, amounts paid any Restricted Payment permitted to be made pursuant to Section 4.08 or any Permitted Investment;
(3) any transaction, including compensation and employee benefit plans) for the personal services of officersarrangements, directors and employees with an officer or director of the Company or any of its the Restricted SubsidiariesSubsidiaries in his or her capacity as an officer or director, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof thereof;
(4) loans and deemed advances to employees made in the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; ordinary course of business and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed consistent with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests past practices of the Company or such Restricted Subsidiary, as the case may be; provided that such loans and advances do not exceed $1.0 million to any one employee and $5.0 million in the aggregate at any one time outstanding;
(b5) upon terms which would be obtainable by agreements in effect on the Issue Date and any modifications, extensions or renewals thereto that are no less favorable to the Company or a any Restricted Subsidiary than such agreement as in a comparable arm's-length transaction effect on the Issue Date; and
(6) sales of accounts receivable, or participations therein, in connection with a Person which is not an Affiliateany Receivables Facility.
Appears in 1 contract
Limitation on Transactions with Affiliates. (a) The Company shall will not, and shall will not permit any of the Restricted Subsidiary Subsidiaries to, engage in directly or indirectly, enter into or permit to exist any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe purchase, sale, lease or exchange of any property or the rendering of any service) with or for the personal services benefit of officers, directors and employees an Affiliate of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition Subsidiary (other than transactions between the Company and a Wholly-Owned Restricted Subsidiary or between Wholly-Owned Restricted Subsidiaries) (an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under (b) below and (y) Affiliate Transactions (including lease transactions) on terms that are no less favorable to the Company or any of its the relevant Restricted Subsidiaries) of an interest Subsidiary in the aggregate than those that might reasonably have been obtained in a comparable transaction by the Company or such Restricted Investment, involving Subsidiary on an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value arm's-length basis (as determined in good faith by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with Resolution) from a person that is not an Affiliate; provided that except as otherwise provided under (b) below, neither the Trustee) to be (a) in Company nor any of the best interests Restricted Subsidiaries shall enter into an Affiliate Transaction or series of related Affiliate Transactions involving or having a value of more than $5.0 million unless the Company or such Restricted Subsidiary, as the case may be, has received an opinion from an Independent Financial Advisor, with a copy thereof to the Trustee, to the effect that the financial terms of such Affiliate Transaction are fair and (b) upon terms which would be obtainable by reasonable to the Company or a such Restricted Subsidiary Subsidiary, as the case may be, and such terms are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable transaction on an arm's-length transaction basis with a Person which person that is not an Affiliate.
(b) The foregoing provisions shall not apply to (i) any Restricted Payment that is made in compliance with Section 4.03, (ii) payments by the Company or any of the Restricted Subsidiaries to Renco or DRA of the amounts set forth in clauses (4) and (5) of the second paragraph of Section 4.03 and (iii) reasonable and customary regular fees to directors of the Company and the Restricted Subsidiaries who are not employees of the Company and the Restricted Subsidiaries.
Appears in 1 contract
Sources: Indenture (Doe Run Resources Corp)
Limitation on Transactions with Affiliates. The Company (a) Parent shall not, and shall not permit any Restricted Subsidiary to, engage directly or indirectly, in any one transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions, transfer any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any affiliate of Parent (an "Affiliate Transaction"), unless the terms thereof are no less favorable to Parent or such Restricted Subsidiary than those that could be obtained at the time of such transaction in arm's-length dealings with a Person that is not such an affiliate; provided that the Board of Directors must approve each Affiliate Transaction that involves aggregate payments or other assets or services with a Fair Market Value in excess of $5.0 million. This approval must be evidenced by a board resolution that states that the Board of Directors has determined that the transaction complies with the foregoing provisions; provided, further that if Parent or any Restricted Subsidiary enters into an Affiliate Transaction that involves aggregate payments or other assets or services with a Fair Market Value in excess of $15.0 million, then prior to the consummation of such Affiliate Transaction, Parent must obtain a favorable opinion from an Independent Financial Advisor that it has determined such Affiliate Transaction to be fair, from a financial point of view, to the Holders, and deliver that opinion to the Trustee.
(b) involving in The provisions of clause (a) above will not prohibit the aggregate $1,000,000 following:
(1) transactions exclusively between or among (a) Parent and one or more Restricted Subsidiaries or (b) Restricted Subsidiaries; provided, in each case, that no affiliate of Parent (other than another Restricted Subsidiary) owns Capital Stock in any such Restricted Subsidiary;
(2) customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements, in each case approved by the Board of Directors;
(3) the entering into of a tax sharing agreement, or payments pursuant thereto, between Parent and/or one or more Subsidiaries, on the one hand, and any other Person with any Affiliate except which Parent or such Subsidiaries are required or permitted to file a consolidated tax return or with which Parent or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by Parent and the Restricted Subsidiaries are not in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(4) loans and advances permitted by clause (6) of the definition of "Permitted Investments";
(5) Restricted Payments of the type described in clause (i) the making of any Restricted Payment), (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) of the definition of "Restricted Payment" and which are made in accordance with Section 4.10;
(6) any transaction with an affiliate where the only consideration paid by Parent or any Restricted Subsidiary is Qualified Stock;
(7) the provision of management, financial and operational services by Parent and its Subsidiaries to affiliates of Parent in which Parent or any Restricted Subsidiary has an Investment and the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as such services; provided that the Board of Directors has determined that the provision of the Company in good faith shall have approved the terms thereof and deemed the such services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of Parent and the Company Restricted Subsidiaries;
(8) transactions between Parent or any Subsidiary and any Securitization Entity in connection with a Qualified Securitization Transaction, in each case provided that such Restricted Subsidiary, and transactions are not otherwise prohibited by this Indenture;
(b9) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction transactions with a Person which that is not an Affiliateaffiliate solely because Parent or any Restricted Subsidiary owns Capital Stock in such Person; provided that no affiliate of Parent (other than a Restricted Subsidiary) owns Capital Stock in such Person; or
(10) purchases and sales of raw materials or inventory in the ordinary course of business on market terms.
Appears in 1 contract
Sources: Indenture (Terra Capital Inc)
Limitation on Transactions with Affiliates. The Company shall notEnter into any transaction, and shall not permit including, without limitation, any purchase, sale, lease or exchange of Property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than Parent, the Borrower, any Restricted Subsidiary to, engage in or any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company or Person that becomes a Restricted Subsidiary as a result of such transaction) unless such transaction is otherwise permitted under this Agreement and upon fair and reasonable terms no less favorable to Parent, the Borrower and its Restricted Subsidiaries than would be obtained in a comparable arm's-arm’s length transaction with a Person which that is not an Affiliate. The Company shall notNotwithstanding the foregoing, Parent, the Borrower and shall not permit any its Restricted Subsidiary toSubsidiaries may (a) [Reserved], engage (b) enter into and consummate the transactions listed on Schedule 6.10, (c) make Restricted Payments permitted pursuant to Section 6.6, (d)(i) make Investments in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, Unrestricted Subsidiaries permitted by Section 6.8 and (ii) any transaction or series make Investments permitted by Section 6.8(x), (e) [Reserved], (f) enter into employment and severance arrangements with officers, directors, managers and employees of transactions between the Company Parent, the Borrower and one or more of its the Restricted Subsidiaries or between two or more of its and, to the extent relating to services performed for Parent, the Borrower and the Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate)Subsidiaries, pay director, officer and (iii) the payment of employee compensation (including, without limitation, amounts paid pursuant to employee bonuses) and other benefits (including, without limitation, retirement, health, stock option and other benefit plans) for and indemnification and expense reimbursement arrangements; provided that any purchase of Capital Stock of Parent (or any direct or indirect holding company of Parent) in connection with the personal services foregoing shall be subject to Section 6.6, (g) undertake the transactions arising out of officersagreements existing on the Closing Date and described or referred to under the caption “Certain relationships and related party transactions and director independence”, directors and employees in the Form 10-K of Holdings most recently filed with the SEC prior to the Closing Date, other than in connection with the purchase or redemption of any Capital Stock of Parent or any holding company of Parent, (h) license on a non-exclusive basis Intellectual Property in the ordinary course of business (1) on an arm’s length basis to permit the commercial exploitation of such Intellectual Property between or among Affiliates of the Company Borrower and (2) to parent companies of the Parent in connection with their ownership of the Parent, (i) [Reserved], (j) issue or transfer Capital Stock (other than Disqualified Capital Stock) of Parent to any direct or indirect parent company of Parent or to any former, current or future director, manager, officer, employee or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms Subsidiaries or any direct or indirect parent company thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company extent otherwise permitted by this Agreement, and (k) make payments to or any of its Restricted Subsidiaries) of an interest in a Restricted Investmentreceive payments from, involving an amount greater than $25,000,000and enter into and consummate transactions with, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with joint ventures (to the Trustee. Notwithstanding the foregoing, this provision shall not prohibit extent any such transaction which joint venture is determined only an Affiliate as a result of Investments by Parent, the independent members of Borrower and the Board of Directors of the Company, Restricted Subsidiaries in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (asuch joint venture) in the best interests ordinary course of business to the Company or such Restricted Subsidiary, and (b) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateextent otherwise permitted hereunder.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall notExcept as otherwise permitted by this Indenture, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by neither the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in nor any of its Restricted Subsidiaries is owned by an Affiliate)shall make any Investment, and (iii) the payment of compensation (includingloan, without limitationadvance, amounts paid pursuant to employee benefit plans) guaranty or capital contribution to, or for the personal services benefit of, or sell, lease or otherwise transfer or dispose of officersany of its properties or assets to, directors and employees or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or understanding with, or for the benefit of, any Affiliate of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition unless (other than to the Company or any of its Restricted Subsidiariesi) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which or series of transactions is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted Subsidiary based on all relevant facts and circumstances; (ii) such transaction or series of transactions is fair to the Company or such Restricted Subsidiary and on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could have been obtained in a comparable transaction on an arms' length basis from a Person that is not an Affiliate of the Company or any of its Restricted Subsidiaries; and (iii) (a) with respect to a transaction or series of related transactions involving aggregate payments in excess of $2,500,000, the Board of Directors and a majority of the Disinterested Directors shall approve such transaction or series of transactions by a Board Resolution evidencing their determination that such transaction or series of transactions complies with clauses (i) and (ii) above, and (b) upon terms which would be obtainable with respect to a transaction or series of transactions involving aggregate payments equal to or greater than $10,000,000, the Company receives a written opinion from a nationally recognized investment bank or valuation firm or, with respect to a transaction requiring the valuation of real property, a nationally recognized real estate appraisal firm, that such transaction or series of transactions is fair to the Company from a financial point of view. The foregoing limitation shall not apply to: (i) any payment of money or issuance of securities by the Company or a any Restricted Subsidiary in of the Company pursuant to employment agreements or arrangements and employee benefit plans, including reimbursement or advancement of out-of-pocket expenses and directors' and officers' liability insurance; (ii) reasonable and customary payments and other benefits (including indemnification) provided to directors for service on the Board of Directors of the Company or any of its Restricted Subsidiaries and reimbursement of expenses related thereto; or (iii) transactions between the Company and any Restricted Subsidiary of the Company, or between one Restricted Subsidiary of the Company and another Restricted Subsidiary of the Company, provided that not more than 20% of such Restricted Subsidiary is owned by any Affiliate of the Company or any of its Restricted Subsidiaries (other than the Company or a comparable arm'sWholly-length transaction with a Person which is not an AffiliateOwned Subsidiary of the Company).
Appears in 1 contract
Sources: Indenture (Nortek Inc)
Limitation on Transactions with Affiliates. The Company shall will not, and shall will not permit any of the Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company directly or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall notindirectly, and shall not permit any Restricted Subsidiary to, engage in any transaction (enter into or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between (including, without limitation, the sale, transfer, disposition, purchase, exchange or lease of assets, property or services, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (other than a Wholly- Owned Restricted Subsidiary) except (i) on terms that are no less favorable to the Company or the Restricted Subsidiary, as the case may be, than those which could have been obtained in a comparable transaction at such time from persons who do not have such a relationship with the Company, (ii) with respect to any transaction or series of related transactions involving aggregate payments or value equal to or greater than $2,000,000, the terms of such transaction or transactions, as the case may be, shall be set forth in writing and one the Company shall have delivered an Officer's Certificate to the Trustee certifying that such transaction or more series of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries related transactions comply with the preceding clause (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliatei), and (iii) the payment with respect to any transaction or series of compensation (including, without limitation, amounts paid pursuant related transactions involving aggregate payments or value equal to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,0005,000,000, the terms of such Asset Sale transaction or transfer transactions, as the case may be, shall be set forth in writing and the Company shall have delivered an Officer's Certificate to the Trustee certifying that such transaction or series of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed transactions (A) comply with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined preceding clause (i) and (B) have been approved by the independent members a majority of the Board of Directors of the Company, including a majority of the Disinterested Directors of the Board of Directors of the Company, or in their reasonablelieu of the certification required by the preceding clause (B), good faith judgment (as evidenced by the Company shall have delivered to the Trustee a Board Resolution filed written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the Trustee) terms and conditions of the type of transaction or series of related transactions for which its opinion is being delivered stating that the transaction or series of related transactions is fair to be (a) in the best interests of the Company or such Restricted SubsidiarySubsidiary from a financial point of view. For the purposes of the foregoing, and a director of the Company shall not be considered "interested" with respect to a transaction solely by virtue of being a director of the other party to such transaction. This Section 1014 will not restrict the Company from (a) making dividends permitted by Section 1009, (b) upon terms which would be obtainable paying reasonable and customary regular fees to directors of the Company who are not employees of the Company, (c) making loans or advances to officers of the Company and the Restricted Subsidiaries in the ordinary course of business for bona fide business purposes of the Company in an aggregate principal amount not to exceed $1,000,000 outstanding at any one time and (d) the Company's employee compensation and other benefit arrangements existing on the Issue Date or thereafter entered into by the Company or a any Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatethe ordinary course of business.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by (a) Neither the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company nor any of its Subsidiaries shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) enter into any transaction or series of transactions between the Company and one to sell, lease, transfer, exchange or more otherwise dispose of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate)properties or assets to or to purchase any property or assets from, and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) or for the personal services of officersdirect or indirect benefit of, directors and employees an Affiliate of the Company or of any Subsidiary of its Restricted Subsidiariesthe Company, so long as make any Investment in or enter into any contract, agreement, understanding, loan, advance or Guarantee with, or for the direct or indirect benefit of, an Affiliate of the Company or of any Subsidiary of the Company (each, including any series of transactions with one or more Affiliates, an "AFFILIATE TRANSACTION"), unless (i) the Board of Directors of the Company in good faith shall have approved or the relevant Subsidiary determines, as evidenced by a Board Resolution, that the terms thereof of such Affiliate Transaction are fair and deemed reasonable to the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; Company and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than no less favorable to the Company or any of its Restricted Subsidiaries) of an interest the relevant Subsidiary than those that could have been obtained at that time in a Restricted Investmentcomparable arms-length transaction by the Company or such Subsidiary with an unrelated Person, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any (ii) such transaction which is determined has been approved by the independent members a majority of the Board of Directors of the CompanyCompany or the relevant Subsidiary who have no direct or indirect interest in the Affiliate Transaction or in the Affiliate that is a party to the Affiliate Transaction, or in any other party that is an Affiliate of any such Affiliate, and (iii) the Company shall have delivered to the holders of the Series D Preferred Stock an Officer's Certificate certifying that the conditions set forth in clauses (i) and (ii) above have been satisfied.
(b) Neither the Company nor any of its Subsidiaries shall enter into an Affiliate Transaction involving or having a potential aggregate value of more than $1,000,000 unless, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with addition to the Trustee) to be requirements of (a) above, the Board of Directors of the Company or the relevant Subsidiary shall first have received a written opinion from an Independent Financial Advisor for the benefit of the Company and the holders of the Series D Preferred Stock, which firm is not receiving any contingent fee or other consideration directly or indirectly related to the successful completion of the Affiliate Transaction, to the effect that the proposed Affiliate Transaction is fair to the Company from a financial point of view.
(c) The provisions of this Section 6.4 shall not apply to (i) any Restricted Payment that is made in compliance with the best interests provisions of Section 6.1 or Section 6.11, (ii) the reasonable and customary fees and compensation paid to or indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Subsidiary, as determined by the Board of Directors of the Company or such Restricted SubsidiarySubsidiary or the senior management thereof in good faith, (iii) transactions exclusively between or among the Company and any Wholly-Owned Subsidiary or exclusively between or among Wholly-Owned Subsidiaries provided such transactions are not otherwise prohibited by this Agreement, and (biv) upon any Affiliate Transaction contemplated by this Agreement (including without limitation, the Management Incentive Plan) or in existence as of the date hereof the terms of which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateare listed on Schedule 3.27.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Each of the Company shall and Sweetheart Holdings will not, and shall will not permit any of their Restricted Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into any contract, agreement, understanding, loan, advance or Guarantee with, or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), except on terms that are no less favorable to the Company, Sweetheart Holdings or the relevant Restricted Subsidiary to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable that would have been obtained in a comparable transaction by the Company, Sweetheart Holdings or such Restricted Subsidiary with a Person who is not an Affiliate; provided, however, that (1) transactions between or among the Company, Sweetheart Holdings and their respective Restricted Subsidiaries, which are not otherwise prohibited by this Indenture, (2) any employment agreement entered into by Sweetheart Holdings, the Company or their respective Restricted Subsidiaries in the ordinary course of business, (3) Permitted Investments and transactions permitted by Section 4.07, (4) provision of administrative or management services by the Company or a Sweetheart Holdings or any of their officers to any of their respective Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, Subsidiaries and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving Unrestricted Subsidiaries in the aggregate $1,000,000 or more with any Affiliate except for (i) the making ordinary course of any Restricted Paymentbusiness, (ii5) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officersplan, directors and employees of officer or director indemnification agreement or any similar arrangement entered into by the Company or any of its Restricted SubsidiariesSubsidiaries in the ordinary course of business and payments pursuant thereto, so long as (6) transactions with a Person (other than an Unrestricted Subsidiary of the Board of Directors Company) that is an Affiliate of the Company in good faith shall have approved solely because the terms thereof and deemed the services theretofore Company owns, directly or thereafter to be performed for through a Restricted Subsidiary, an Equity Interest in, or controls, such compensation or Person, (7) payment of reasonable directors' fees to be fair consideration therefor; and provided further that for Persons who are not otherwise Affiliates of the Company, (8) any Asset Sale, or a sale, transfer or other disposition issuance of Equity Interests (other than to Disqualified Stock) of the Company or to Affiliates of the Company, and (9) any transaction pursuant to arrangements in existence as of its Restricted Subsidiaries) the date of an interest this Indenture and disclosed in a Restricted Investmentthis offering circular, involving an amount greater than $25,000,000in each case, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trusteeshall not be deemed Affiliate Transactions. Notwithstanding In addition to the foregoing, this provision shall not prohibit neither of the Company, Sweetheart Holdings nor any of their Restricted Subsidiaries will enter into any Affiliate Transaction or series of related Affiliate Transactions involving consideration having a Fair Market Value:
(a) of more than $1.0 million unless prior to consummation of such transaction, such transaction which is determined has been approved by a majority of the independent disinterested members of the Board of Directors of the Company, in their reasonable, good faith judgment (as such approval to be evidenced by a board resolution stating that such Board Resolution filed of Directors has determined that such transaction complies with this Section 4.11; and
(b) of more than $5.0 million unless prior to consummation of such transaction, the Trustee) Company has delivered to be (a) in the best interests Trustee on behalf of the Company Holders (1) a written opinion of a nationally recognized investment banking, accounting or appraisal firm stating that such transaction is fair to the Company, Sweetheart Holdings or such Restricted Subsidiary, and as the case may be, from a financial point of view or, (b2) upon terms which would be obtainable by with respect to real property, fixed assets or equipment, a written appraisal from a nationally recognized appraiser showing such property to have a value not less than the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateamount of such consideration.
Appears in 1 contract
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, enter into, renew or extend any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with any Affiliate of the Company or any Restricted Subsidiary, except upon fair and reasonable terms which would be any no less favorable to the Company or such Restricted Subsidiary than those obtainable could be obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm’s-length transaction with a Person that is not such an Affiliate. The foregoing limitation does not limit, and shall not apply to:
(1) transactions (A) approved by a majority of the disinterested members of the Board of Directors or (B) for which the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as the Board of Directors of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than delivers to the Company or any of its Restricted Subsidiaries) of an interest in Trustee a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an written opinion of a nationally recognized investment banking banking, accounting, valuation or appraisal firm stating that the transaction is fair to the Company or such Restricted Subsidiary from a financial point of view;
(2) any transaction solely between the Company and any of its Restricted Subsidiaries or solely among Restricted Subsidiaries;
(3) the payment of reasonable and customary regular fees and compensation to (including issuances and grants of securities and stock options pursuant to employment agreements and stock option and ownership plans for the benefit of) directors of the Company who are not employees of the Company and indemnification arrangements entered into by the Company in the ordinary course of business and consistent with past practices of the Company;
(4) any payments or other transactions pursuant to any agreement in effect on the Closing Date and filed by the Company with the TrusteeCommission as an exhibit to its most recent annual report or any of its subsequently filed quarterly or periodic reports, and any transactions contemplated thereby (including pursuant to any amendment thereto or any replacement agreements thereof, so long as such amendment or replacement is not more disadvantageous to the Holders in any material respect than the agreement in effect on the Closing Date);
(5) loans and advances to employees and officers of the Company and its Restricted Subsidiaries in connection with the exercise of rights under the Company’s or such Restricted Subsidiaries’ stock-based plans;
(6) agreements with or for the benefit of employees of the Company of any of its Subsidiaries regarding bridge loans and other loans necessitated by the relocation of the Company’s or other such Subsidiary’s business or employees, or regarding short-term hardship advances;
(7) transactions permitted by, and complying with, the provisions of the Article Five herein.
(8) any payments or other transactions pursuant to any tax-sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes;
(9) any sale of shares of Capital Stock (other than Disqualified Stock) of the Company;
(10) transactions effected as part of a Qualified Securitization Transaction otherwise permitted under this Indenture; or
(11) any Permitted Investments or any Restricted Payments not prohibited by Section 4.05 herein. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined or series of related transactions covered by the independent members first paragraph of this Section 4.08 and not covered by clauses (2) through (11) of this paragraph the Board aggregate amount of Directors of the Companywhich exceeds $20 million in value, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) must be approved or determined to be (a) fair in the best interests of the Company manner provided for in clause (1)(A) or such Restricted Subsidiary, and (bB) upon terms which would be obtainable by the Company or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliateabove.
Appears in 1 contract
Sources: Indenture (Ingram Micro Inc)
Limitation on Transactions with Affiliates. The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, engage in any transaction with any Affiliate upon terms which would be any less favorable than those obtainable by the Company enter into or a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliate. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for (i) the making of any Restricted Payment, (ii) suffer to exist any transaction or series of related transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plansthe sale, purchase, exchange or lease of assets, property or services or enter into or make any payment, loan, advance or guarantee) with or for the personal services benefit of officersany Affiliate of the Company or such Restricted Subsidiary unless such transaction or series of related transactions is in writing on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than would be available in a comparable transaction in arm's-length dealings with an unrelated third party; provided, however, that, the Company will not, and will not permit any of its Restricted Subsidiaries to, enter into or suffer to exist any such transaction or series of related transactions which, individually or in the aggregate, involve payments in excess of (a) $750,000, unless an Officers' Certificate stating that such transaction complies with this covenant shall be delivered to the Trustee, (b) $1.0 million, unless the prior good faith approval of a majority of the Disinterested Directors of the Company shall have been obtained and Board Resolution relating thereto shall have been passed and set forth in an Officers' Certificate delivered to the Trustee, or (c) $5.0 million, unless the prior good faith approval of a majority of the Disinterested Directors of the Company shall have been obtained and the Board of Directors shall have obtained from any nationally recognized investment banking firm a favorable opinion as to the fairness to it of the transaction (copies of which shall be filed with the Trustee); and provided, further that, the terms of this provision shall not apply to (i) reasonable fees and compensation, loans or options to purchase Common Stock, indemnification and other benefits paid or made available to directors and full time officers and employees of the Company or any of its Restricted SubsidiariesSubsidiaries for services rendered in such person's capacity as an officer, so long as the Board of Directors director or employee of the Company or the applicable Restricted Subsidiary, in good faith shall have approved each case entered into in the terms thereof and deemed the services theretofore ordinary course of business consistent with past practice, (ii) transactions with or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Saleamong, or a salesolely for the benefit of, transfer or other disposition (other than to the Company or any of its Wholly-Owned Restricted Subsidiaries, (iii) of transactions with an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value Unrestricted Subsidiary effected as determined by an opinion part of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests of the Company or such Restricted SubsidiarySecuritization Transaction, and (biv) upon payments and other transactions pursuant to agreements in effect on the Issue Date and described in the Exchange Offer and Consent Solicitation Statement, as from time to time amended thereafter; provided that, as so amended, such agreements shall provide for terms which would be obtainable by that are, in aggregate, not more disadvantageous to the Company or a Restricted Subsidiary Holders of Securities in a comparable arm's-length transaction with a Person which is not an Affiliateany material respect than as in effect on the Issue Date.
Appears in 1 contract
Sources: Indenture (510152 N B LTD)
Limitation on Transactions with Affiliates. The Company shall not, and shall not permit any Restricted Subsidiary to, engage in directly or indirectly, enter into, renew or extend any transaction (including, without limitation, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with any Affiliate upon terms which would be any less favorable than those obtainable by of the Company or a any Restricted Subsidiary, except upon terms no less favorable to the Company or such Restricted Subsidiary than could be obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm's-length transaction with a Person which that is not such an Affiliate. The Company shall notforegoing limitation does not limit, and shall not permit any Restricted Subsidiary apply to, engage in any transaction (or series of related transactions) involving in the aggregate $1,000,000 or more with any Affiliate except for :
(i) transactions (A) approved by a majority of the making disinterested members of any the Board of Directors of the Company or (B) for which the Company or a Restricted PaymentSubsidiary delivers to the Trustee a written opinion of nationally recognized investment banking, accounting, valuation or appraisal firm stating that the transaction is fair to the Company or such Restricted Subsidiary from a financial point of view;
(ii) any transaction or series of transactions solely between the Company and one or more any of its Restricted Subsidiaries or between two or more of its solely among Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned by an Affiliate), and Subsidiaries;
(iii) the payment of reasonable fees and compensation (includingpaid to, without limitationand indemnity and similar arrangements provided on behalf of, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any Restricted Subsidiary in the ordinary course of its Restricted Subsidiariesbusiness, so long as determined in good faith by the Board of Directors or senior management of the Company in good faith shall have approved the terms thereof and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for Company;
(iv) any Asset Sale, or a sale, transfer payments or other disposition transactions pursuant to any tax-sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes;
(v) any sale of shares of Capital Stock (other than Disqualified Stock) of the Company;
(vi) any Permitted Investments or any Restricted Payments not prohibited by Section 4.04;
(vii) fees, discounts and expense reimbursements paid to, and indemnity and similar arrangements with, any Initial Purchaser in connection with the offering and sale of the Notes and the Bank Agent or any lender in connection with the Credit Agreement;
(viii) customary fees, discounts and expense reimbursement paid to, and indemnity and similar arrangements with Affiliates providing commercial banking and investment banking services, including, without limitation, underwriting and other financial advisory services, to the Company and its Restricted Subsidiaries;
(ix) any agreement or arrangement in effect on the Closing Date, as amended, modified or replaced from time to time; provided that the amended, modified or replaced agreement or arrangement is not less favorable in any material respect to the Company and its Restricted Subsidiaries than that in effect on the Closing Date;
(x) loans and advances to officers and employees of the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) Subsidiary in the best interests ordinary course of business of the Company or such not exceeding $5 million in the aggregate outstanding at any time;
(xi) Restricted Subsidiary, and Payments that are permitted pursuant to Section 4.04;
(bxii) upon terms which would be obtainable by transactions between the Company or a Restricted Subsidiary and an Insurance Subsidiary, between the Company or a Restricted Subsidiary and a Securitization Subsidiary or between a Securitization Subsidiary and any Person in a comparable arm's-length which the Securitization Subsidiary has an Investment; or
(xiii) issuances of securities or payments or distributions in the ordinary course of business in connection with employment incentive plans, employee stock plans, employee stock option plans and similar plans and arrangements approved by the Board of Directors. Notwithstanding the foregoing, any transaction with a Person or series of related transactions covered by the first paragraph of this Section 4.08 and not covered by clauses (ii) through (xiii) of this paragraph, (a) the aggregate amount of which is not an Affiliateexceeds $5.0 million in value, must be approved or determined to be fair in the manner provided for in clause (i)(A) or (B) above and (b) the aggregate amount of which exceeds $10.0 million in value, must be determined to be fair in the manner provided for in clause (i)(B) above.
Appears in 1 contract
Sources: Indenture (VHS of Phoenix Inc)
Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary of the Company to, engage in directly or indirectly, enter into any transaction (including without limitation the purchase, sale, lease or exchange of any property or the rendering of any service) with any an Affiliate upon (including an Unrestricted Subsidiary) (an "Affiliate Transaction"), unless such 39 47 transaction is on terms which would be any no less favorable than those obtainable by to the Company or a such Restricted Subsidiary than those that could be obtained in a comparable arm's-arms' length transaction with a Person which an entity that is not an Affiliate. .
(b) The Company shall not, and shall not permit any of the Restricted Subsidiary Subsidiaries of the Company to, engage enter into (i) an Affiliate Transaction involving or having a potential value of more than $1,000,000 unless the Company delivers an Officers' Certificate to the Trustee generally describing such transaction and certifying that the transaction has been approved in any transaction good faith by resolution of the Board of Directors of the Company (including a majority of the Independent Directors) or a committee of Independent Directors and such resolution provides that such Affiliate Transaction complies with the requirements of this Section 4.15 or (ii) an Affiliate Transaction (or a series of related transactionsAffiliate Transactions) involving or having a potential value of more than $5,000,000 (other than an Affiliate Transaction relating to compensation arrangements for employees who are not otherwise Affiliates), unless (x) the Company delivers an Officers' Certificate to the Trustee to the same effect as described in the aggregate $1,000,000 or more with any Affiliate except for clause (i) hereinabove and (y) the making Company has received an opinion of an independent accounting, appraisal or investment banking firm of national standing to the effect that such Affiliate Transaction is fair to the Company or such Restricted Subsidiary, as applicable, from a financial point of view, a copy of which opinion shall be delivered to the Trustee along with the Officers' Certificate described in clause (x) above. The Trustee shall have no duty or responsibility to determine the accuracy and correctness of such Officers' Certificate or the reasonableness of the opinion of the accounting, appraisal or investment banking firm and shall be fully protected from any Restricted Paymentliability incurred by it resulting from its reliance on such Officers' Certificate and fairness opinion.
(c) Notwithstanding anything to the contrary contained herein, the foregoing provisions shall not apply to (iii) any transaction or series of transactions between the Company and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries (provided that no more than 5% of the equity interest in any of its Restricted Subsidiaries is owned employment agreement entered into by an Affiliate), and (iii) the payment of compensation (including, without limitation, amounts paid pursuant to employee benefit plans) for the personal services of officers, directors and employees of the Company or any of its Restricted Subsidiaries, so long as Subsidiaries in the Board ordinary course of Directors of the Company in good faith shall have approved the terms thereof business and deemed the services theretofore or thereafter to be performed for such compensation or fees to be fair consideration therefor; and provided further that for any Asset Sale, or a sale, transfer or other disposition (other than to the Company or any of its Restricted Subsidiaries) of an interest in a Restricted Investment, involving an amount greater than $25,000,000, such Asset Sale or transfer of interest in a Restricted Investment is for fair value as determined by an opinion of a nationally recognized investment banking firm filed consistent with the Trustee. Notwithstanding the foregoing, this provision shall not prohibit any such transaction which is determined by the independent members of the Board of Directors of the Company, in their reasonable, good faith judgment (as evidenced by a Board Resolution filed with the Trustee) to be (a) in the best interests past practice of the Company or such Restricted Subsidiary, (ii) payment of indemnities and fees to directors of the Company and any of its Restricted Subsidiaries, (iii) payments pursuant to any tax sharing agreement or arrangement among the Company and its Subsidiaries; provided, however, the tax sharing agreement shall provide that each Unrestricted Subsidiary shall pay annually (or more frequently if required to make estimated tax payments) to the Company an amount equal to the amount of income tax that such Unrestricted Subsidiary would have paid if the Unrestricted Subsidiary's income tax liability was determined as if it were not a member of a consolidated group, and such amount shall be paid prior to the date the Company must make payment to the relevant taxing authority; (iv) any management arrangement relating to Amercord, on terms that are not materially less favorable to the Holders than the management agreement among Amercord, the Company and Ivaco that is in effect on the Initial Issuance Date, provided that such agreement may be terminated or the amounts payable to the Company thereunder may be modified at the option of the Company; provided, that, such amended or modified management arrangement has been approved by the Company's Board of Directors; (v) transactions between or among the Company and any Wholly-Owned Subsidiary; (vi) transactions between or among the Company and/or its Restricted Subsidiaries that are permitted 40 48 elsewhere in this Indenture; and (bvii) upon (A) that certain Stockholders' Agreement among the Company, The Prudential Insurance Company of America and the Winspear Family Limited Partnership, and (B) that certain Registration Rights Agreement among the Company, The Prudential Insurance Company of America, the Winspear Family Limited Partnership and certain other parties thereto, all as in effect on the Initial Issuance Date or as thereafter amended or modified such that the terms which would be obtainable thereof are not materially less favorable to the Holders; provided, that, any such amendment or modification has been approved by the Company or Company's Board of Directors (including a Restricted Subsidiary in a comparable arm's-length transaction with a Person which is not an Affiliatemajority of the Independent Directors).
Appears in 1 contract
Sources: Indenture (Associated Materials Inc)